Basing a Term of Supervised Release on the Need for Retribution Is Plain Error

June 20, 2017 by Marshall A. Mintz · Leave a Comment 

Burden and a co-defendant were both convicted after a jury trial of, among other things, racketeering, violent crimes in aid of racketeering, and a cocaine conspiracy. Both were sentenced to life imprisonment. After exhausting their direct appeals, both brought habeas petitions to vacate their convictions pursuant to 28 U.S.C. § 2255. Each then entered into a “Stipulation for Resentencing” with the government where they agreed to withdraw the habeas petitions in exchange for being resentenced based on a Guidelines range of 262-365 months’ imprisonment. The district court the resentenced each to 365 months’ imprisonment and a life term of supervised release.

The defendants appealed and argued that the district court first erred by not advising them that they faced terms of supervised release and then also failed to adequately explain the decision to impose life terms of supervised release. In response, the government claimed that the appeals were barred by an appellate waiver provision in the resentencing stipulations. The relevant language stated that if the district court imposed “an incarceration term within the agreed-upon guideline range of 262-365 months’ incarceration,” the defendants waived the right to appeal or collaterally attack any claimed error in connection with the resentencing.

In United States v. Burden, (2d Cir. June 19, 2017), the Circuit found that the waivers were valid and the district court’s failure to advise the defendants regarding supervised release was not plain error. However, the Circuit also concluded that the language of the waivers did not encompass the imposition of supervised release, and the district court committed plain error by apparently relying on retribution as a basis for imposing the life term. As such, the Circuit vacated and remanded for resentencing as to the terms of supervised release.

AG Sessions Directs Federal Prosecutors to Pursue Most Severe Charges and Sentences Available

May 12, 2017 by Marshall A. Mintz · Leave a Comment 

As detailed in this press release, Attorney General Jeff Sessions has directed federal prosecutors to “charge and pursue the most serious, readily provable offense,” which are the offenses “that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

The letter also states that “any decision to vary from the policy [including recommending a sentence outside the guidelines range] must be approved by a United  States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasoning must be documented in the file.”

Specifically, this directive is aimed at Eric Holder’s 2013 “Smart on Crime” initiative, which instructed prosecutors to use their individual judgment about which charges to bring in certain cases where a mandatory minimum sentence would be triggered by drug type and quantity. That initiative also stated that, in cases where the guidelines range exceeded a mandatory minimum, “prosecutors should consider whether a below-guidelines sentence was sufficient.”

Nobody likes mandatory minimum sentences – not defense attorneys, prosecutors, judges, or the public. And it is hard to see how this policy is anything more than a way to increase the number of people going to prison and the length of their sentences regardless of the individual circumstances of their case.

New York Times Editorial on Appellate Waivers

July 18, 2012 by Marshall A. Mintz · Leave a Comment 

The New York Times printed an editorial discussing the “appellate waiver” provision included in many plea agreements in Federal cases. These provisions state that a defendant will not appeal their sentence if it is within or below the sentencing range estimated at the time of the plea. However, the government often over-estimates the potential sentencing exposure that early in the case. Once the correct sentencing range is determined (which only happens long after the plea is entered), it is not unusual for the waiver provision to preclude an appeal from a sentence much longer than what the defendant ever could have received.

As the Times opined, “Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.”

Not discussed in that editorial is that these waiver provisions also preclude an appeal when the judge doesn’t follow the law when imposing the sentence. An example can be found in United States v. Bussiereth, where the Second Circuit dismissed the appeal (based on a waiver) even while agreeing that the judge did not comply with the statutory requirements when sentencing Mr. Bussiereth. As the Second Circuit explained: “While Buissereth’s appeal waiver did not relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude this Court from correcting the errors alleged to have occurred below.”

And that is why these waivers are so dangerous — sentencing someone to prison should not be a casual affair. Rules should be followed and rights must be protected. But these waiver provisions mean that a judge can disregard almost any laws or procedures without consequence so long as the sentence imposed is within the scope of the waiver provision.

And if we allow that, the integrity of our entire criminal justice system should be questioned.

Effective Assistance of Counsel and Plea Bargaining

March 22, 2012 by Marshall A. Mintz · Leave a Comment 

In a pair of cases decided on March 21, 2012, the United States Supreme Court addressed the Sixth Amendment right to the effective assistance of counsel as it applies to plea negotiations. In addition to describing the proof necessary to establish a claim of ineffective assistance of counsel relating to plea proceedings, the Court made some notable (although not surprising) observations about the importance of plea bargaining in the criminal justice system.

First, in Missouri v. Frye, the Court explained that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Thus, “[i]n today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” Because guilty pleas are “so central to today’s criminal justice system . . ., defense counsel must meet responsibilities in the plea bargain process to render the adequate assistance of counsel that the Sixth Amendment requires at critical stages of the criminal process.”

The Court then went on to hold that “[a]s a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.” If an attorney fails to do so and the plea offer expires or is rejected, a defendant can show prejudice (and establish a Sixth Amendment claim) by demonstrating “a reasonable probability both that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it.”

Next, in Lafler v. Cooper, the Court addressed the burden for a defendant who is convicted after trial but had rejected a plea offer based on objectively bad advice from counsel. To establish a Sixth Amendment violation, the defendant must prove a reasonable probability that the plea would have been accepted and the sentence would have been less severe than that which was actually imposed.