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.

Second Circuit Remands for Consideration of Whether the Sentencing Guidelines Produce Unfair Sentencing Ranges for Financial Crimes

December 5, 2016 by Marshall A. Mintz · Leave a Comment 

In United States v. Murshed, two defendants were convicted of financial offenses involving the Supplemental Nutrition Assistance program. When calculating the Sentencing Guidelines ranges the base offense levels for both defendants tripled because of the amount of loss attributable to each (under U.S.S.G. § 2B1.1, the base offense level was 6 but increased to 18 for one defendant and 16 for the other).

Because the Sentencing Commission had assigned a “rather low base offense level” for fraud offenses and then “increased it significantly by a loss enhancement,” the sentencing judge was entitled to consider that fact alone as a basis for a non-Guidelines sentence.

So, while specifically stating that it was not declaring any error in the sentences imposed, the Court remanded for the sentencing judge to consider the impact of the loss enhancement as a reason for imposing a non-Guidelines sentence.

It isn’t clear from the Second Circuit’s decision whether the sentencing court felt this was not a permissible basis for a non-Guidelines sentence or whether the argument was raised for the first time on appeal.

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.

Sentencing Errors Did Not Render Appeal Waiver Unenforceable, But Were Still Errors

March 15, 2011 by Marshall A. Mintz · Leave a Comment 

In United States v. Buissereth, 09-5358-cr (2d Cir. March 15, 2011) – a case in which I represent the appellant – the Second Circuit found that the district court erred by failing to: rule on the defendant’s objections to the Presentence Investigation Report; rule on numerous arguments for departures or a variance; adopt the findings of the Presentence Report in open court; articulate any consideration of the 3553(a) factors; or, calculate the applicable Guidelines range.

While the Court opined that the sentencing hearing “left much to be desired” because an appellate waiver does not relieve a sentencing court of its responsibility to comply with the procedural requirements for sentencing, it ultimately held that the appellate waiver precluded the Court from correcting the errors and dismissed the appeal.

Second Circuit Upholds Constitutionality of New York State’s Persistent Felony Offender Sentencing Scheme

October 18, 2010 by Marshall A. Mintz · Leave a Comment 

In Portalatin v. Graham, __ F.3d __, 2010 WL 4055571 (2d Cir. Oct. 18, 2010)(en banc), the Second Circuit, in a 9-3 split, held that the New York State courts did not unreasonably apply Supreme Court precedent when finding that the New York State Persistent Felony Offender sentencing statute (PFO) was Constitutional.

The majority relied heavily on the standard of review, noting that Federal Courts are “bound by [the New York State Court of Appeals’s] construction of New York law in conducting our analysis” and that New York courts have “interpreted the statute to authorize [the increased] sentence based on the defendant’s predicate felony convictions alone.”

As summed up by the majority, “the PFO statute — as interpreted by the New York Court of Appeals — creates a recidivist sentencing scheme in which the only factual predicates necessary to impose the enhanced sentence relate to the defendant’s criminal history. Unlike in Blakely and Cunningham, recidivism findings are the touchstone: the predicate felonies alone expand the indeterminate sentencing range within which the judge has the discretion to operate, and that discretion is cabined only by an assessment of defendant’s criminal history.”

The dissent argued that the majority opinion showed “only that the PFO statute can be applied in a constitutional manner,” but not that it actually was (or continues to be). Further, the dissent noted that the arguments relied on by the majority (regarding the maximum sentence for Apprendi purposes) were the same ones rejected in Blakely and Cunningham.

District Court’s Refusal to Consider 5k Letter or 3553 Factors at Sentencing Renders Appellate Waiver Unenforceable and Results in Remand to a New Judge

July 8, 2010 by Marshall A. Mintz · Leave a Comment 

In United States v. Woltman, 10-413-cr (2d Cir. July 6, 2010), the Second Circuit found an appellate waiver contained in a plea agreement unenforceable, vacated the sentence, and remanded the case to a new judge.

Woltman pled guilty pursuant to a plea agreement which included a provision whereby he waived his right to appeal any sentence of 27 months’ imprisonment or less – the top of the advisory Guidelines range estimated in that agreement. Then, after signing that agreement but before sentencing, Woltman cooperated with the government and a 5K1.1 letter was filed. Both sides then urged the district court (Judge Platt) to impose a sentence below the advisory Guidelines range. However, the district court refused to consider the 5K1.1 letter, concluding that the plea agreement controlled, and that, “in urging consideration of the 5K1.1 letter, the parties were improperly attempting to repudiate or modify the Agreement – and repeatedly rebuked them for doing so.”

Basically, “the district court believed that because of the appeal waiver, any sentence at or below 27 months was appropriate, regardless of whether or how the 5K1.1 letter and the 3553(a) factors – if considered – would bear on the sentence.”

The district court sentenced Woltman to 18 months and he appealed. The government then moved to dismiss the appeal based on the appellate waiver.

The Circuit stated that it would “not enforce an appeal waiver where – as here – the sentencing decision was reached in a manner that the plea agreement did not anticipate” or “where the sentencing court failed to enunciate any rationale for the defendant’s sentence, this amounting to an abdication of judicial responsibility.” It then described the refusal to consider the 5K1.1 letter and 3553(a) factors as “an error categorically different from a misapplication of a guideline, or a mistake of law, or a dubious finding of fact.”

The Circuit also took the rarely used step of remanding the case to a different judge, citing the “scorn with which Judge Platt approached the matters pertaining to sentencing,” as well as “Judge Platt’s pattern of errors regarding 5K1.1 letters.”

Why the government would actively seek dismissal based on these facts is a mystery. The inflexible manner in which the government approaches this issue is part of the reason that defense attorneys are so concerned about the inclusion of waiver provisions in plea agreements.

§ 2254 Petition Addressing Resentencing Is Not Second or Successive, Even If Prior Petition Was Filed

June 24, 2010 by Marshall A. Mintz · Leave a Comment 

In Magwood v. Patterson, the United States Supreme Court held that a when a defendant files a § 2254 Petition which is granted, a subsequent § 2254 Petition challenging the new sentence is not “second or successive,” and therefore not subject to the constraints of § 2244(b) — which requires, among other things, leave from the Court of Appeals.

The Court held that the subsequent Petition was the first application challenging the new judgment, noting that the errors alleged were new — even those errors which could have been brought in the initial § 2254 Petition.

Second Circuit Finds NY Persistent Felon Sentencing Scheme Unconstitutional

March 31, 2010 by Marshall A. Mintz · Leave a Comment 

In a long-awaited decision today (in a case in which I wrote the Amicus brief on behalf of the New York State and National Associations of Criminal Defense Lawyers), the Second Circuit found that New York State’s Persistent Felony Offender Statute (PFO)  is unconstitutional and an unreasonable application of clearly established law.  That decision involves five consolidated cases — Besser v. Walsh, Phillips v. Artus, Portalatin v. Graham, Morris v. Artus, and Washington v. Poole, — all of which involved challenges, pursuant to 28 U.S.C. 2254, to the PFO statute.

The Court began by explaining that “the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).”

The New York Sentencing Law

For first and second felony offenders, the existence or non-existence of a prior felony alone 5 determines the applicable sentencing range.  However, under the PFO statute, a defendant who has been previously convicted of two felonies is a “persistent felony offender.”  Under the PFO statute, the sentencing court must make a finding of at least two prior felony convictions, rendering that defendant a PFO and exposing him or her to an enhanced sentence.  After making that finding, the court turns to whether “the history and character of the defendant and the nature and circumstances of his criminal conduct” is such that the PFO should, in the public interest, be given that enhanced sentence.

Prior Judicial Review

The New York Court of Appeals has repeatedly rejected Sixth Amendment challenges to that sentencing scheme, holding that the existence of the prior felonies alone authorizes the enhanced sentence. See People v. Quinones, 906 N.E.2d 1033, 1034 (N.Y. 2009); People v. Rivera, 833 N.E.2d 7 at 195; People v. Rosen, 752 N.E.2d 844, 846 (N.Y. 2001).

For its part, the Second Circuit has twice held that the New York Court of Appeals did not unreasonably apply either Apprendi v. New Jersey, 530 U.S. 466 (2000), or the Supreme Court’s later decision in Ring v. Arizona, 536 U.S. 584 (2002). See Brown v. Miller, 451 F.3d 54, 56-57 (2d Cir. 2006).

The Current Decision

However, today’s decision explains that whatever doubt may have existed about the constitutionality of the NY statute was laid to rest by Blakely.  Blakely, the Court explained, clarified Apprendi by making it unambiguously clear that any fact (other than a prior conviction), no matter how generalized or amorphous, that increases a sentence for a specific crime beyond the statutory maximum must be found by a jury.

In sum, the Court explained, the PFO statute cannot be squared with the statement by Justice Ginsburg in her opinion for the Court in Cunningham v. California, 127 S. Ct. 856 (2007): “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.”

In setting Blakely as the tipping point, the Court stated that “the legal rule invoked by petitioners was not clearly established until Blakely clarified Apprendi.”  As such, only those convictions which became final after the Blakely decision will be subject to review.

The Remedy

With respect to the petitioners in the consolidated cases which the Court decided, it remanded for hearings to determine whether application of the statute “had [a] substantial and injurious effect or influence” on each sentence.  Brecht v. Abrahamson, 507 U.S. 619 (1993).


The Second Circuit granted the State’s petition for rehearing en banc.  The case will be heard on July 9.