Vol. 14, Nos. 49 & 50	Covering Cases Published in the Advance Sheets through Dec. 10, 2007

New Supreme Court Decision

• In Van Patten the Supreme Court reversed a decision from the Seventh Circuit which had granted the defendant habeas relief after finding that a defense lawyer who participates in a plea hearing by speakerphone is presumptively ineffective. Without ever resolving whether the physical presence of counsel is required at a plea hearing, the Court concluded that, because its own cases “give no clear answer to the question presented,” it could not be said that the state court (which initially denied the petitioner any relief) “unreasonably applied clearly established Federal law” within the meaning of 28 U.S.C. § 2254(d).
  
  

Sentencing/Guidelines - Post Gall and Kimbrough

• In an important decision that shows the impact of Gall v. U.S. on a Circuit that previously was extremely stingy in approving below-Guidelines sentences, the Eighth Circuit, in Lehmann, actually affirmed a sentence of probation for a woman who pled guilty to unlawful possession of a firearm by a felon. After concluding that the district court had properly considered the various factors necessary to justify the variance, and after determining that the sentence was “procedurally sound,” the Court concluded: “Given the impermissibility of ‘proportionality’ review, and the requisite deference due to the district court, we cannot conclude that the sentence imposed was substantively unreasonable in light of § 3553(a) and Gall.”
  
  
  
• The Sexton decision from the Sixth Circuit is noted for Judge Merritt’s outspoken dissent in which he sharply criticized the federal courts for engaging in "guidelineism”, or “guidelinitis” when imposing sentences, which he defined as “ the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone."
  
  

Search and Seizure Issues

• In the Grand Jury (Boucher) case, Magistrate Judge Niedermeier of the D.Vt. granted a defendant’s motion to quash a Government subpoena to force him to disclose an encryption password to his computer to enable it to discover whether the computer contained child pornography. Judge Niedermeier concluded that forcing the defendant to disclose the password would violate his Fifth Amendment rights against self-incrimination.
  
  
  
• In Reaves, the Fourth Circuit vacated a gun conviction on the grounds that the police lacked reasonable suspicion to stop the defendant in his car, since the stop was based solely on a tip from an anonymous 911 call that was not sufficiently corroborated in its assertion of illegal conduct.

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Wright v. Van Patten, No. 07-212 (U.S. Sup. Ct. Jan. 7, 2008) (Per Curiam)

In this unanimous, per curiam decision, the Supreme Court reversed a decision from the Seventh Circuit which granted the defendant habeas relief after holding that a defense lawyer who participates in a plea hearing by speakerphone was presumptively ineffective.

In reversing, the Supreme Court cited the provisions of the AEDPA (28 U.S.C. § 2254(d)(1)), which bars relief on any claim “adjudicated on the merits” in state court, unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

The Court then concluded: “Because our cases give no clear answer to the question presented, let alone one in Van Patten's favor, it cannot be said that the state court 'unreasonably applied clearly established Federal law’.”

Joseph Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His lawyer was not physically present at the plea hearing but was linked to the courtroom by speakerphone.

After being sentenced to 25 years in prison, Van Patten hired different counsel and moved to withdraw his no-contest plea in the Wisconsin Court of Appeals. He argued that his Sixth Amendment right to counsel had been violated by his trial counsel's physical absence from the plea hearing.

The state appellate court found no constitutional violation. Van Patten then sought habeas relief in federal court. The district court denied relief but, in a decision reported at Van Patten v. Endicott, 489 F.3d 827 (7th Cir. June 5, 2007), the Seventh Circuit reversed, relying largely on U.S. v. Cronic, 466 U.S. 648 (1984).

In Cronic, the Supreme Court explained that some violations of the right to counsel arise in “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” One such circumstance exists when the accused is “denied the presence of counsel at a critical stage of the prosecution.” (Cronic, id., at 662).

The Supreme Court disagreed with the Seventh Circuit’s interpretation of Cronic, stating that none of its prior decisions “squarely addresses” the issue in this case.” Thus, the Court observed: “Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief.”

Justice Stevens, who authored the Supreme Court’s unanimous decision in Cronic, wrote a concurring opinion in the instant case in which he said "an unfortunate drafting error" in Cronic made it necessary for him to join the opinion. He said that the Seventh Circuit apparently read "the presence of counsel" in Cronic to mean "the presence of counsel in open court.” He then wrote:

"In my view, this interpretation is correct. The fact that in 1984 when Cronic was decided, neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh explains the author's failure to add the words 'in open court' after the word 'present’."

U.S. v. Lehmann, No. 06-3597 (8th Cir. Jan. 17, 2008) (Per Curiam)

Johnette Lehmann had a prior conviction as a felon, which prohibited her from possessing a firearm. However, in 2003, she took a gun from an ex-boyfriend because he was an alcoholic, and stuck in high on a shelf in her closet. In 2005, Lehmann’s fourteen-year-old daughter, Ashley, found the gun and apparently shot herself; and she died several days later.

Lehmann was charged with unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1); and she ultimately pled guilty to that charge. Her Guideline sentencing range was 37 to 46 months in prison; but she urged the district court (Judge Dorr of the W.D.Mo.) to depart downward under § 5H1.6 of the advisory guidelines, or to vary from the advisory guidelines under 18 U.S.C. § 3553(a), based on her family ties and responsibilities.

In particular, Lehmann argued that her nine-year old son, Jamie, suffered from severe disabilities that required her day-to-day involvement in his care and development; and, at her sentencing hearing, she presented testimony from a psychologist and a therapist, both of whom opined that separating Jamie from his mother would have a negative impact on the child.

After hearing the evidence presented, Judge Dorr imposed a sentence of probation on Lehmann; and the Eighth Circuit construed that sentence as a "variance" based on the provisions of 18 U.S.C. § 3553(a), without regard to any guidelines-based departure that might have been warranted.

The Government appealed, arguing that the sentence was unreasonable with regard to 18 U.S.C. § 3553(a).

After noting that, under its pre-Gall jurisprudence, it had “routinely rejected as unreasonable” sentences of probation, the Eighth Circuit affirmed such a sentence in this case. It noted that Judge Dorr had given “adequate weight consideration to the need to avoid unwarranted disparities among defendants with similar records”; that he had “explained at some length its reasons for imposing a sentence that deviated substantially from the advisory guidelines range, thus allowing for meaningful appellate review”; and that his sentencing decision was "procedurally sound."

The Court then concluded:

“The district court imposed a sentence of probation, and the government argues that the sentence is substantively unreasonable. Our precedents prior to Gall ‘routinely’ rejected as unreasonable those variances that resulted in a sentence of probation when the guidelines recommend a term of imprisonment, United States v. Soperla, 494 F.3d 752, 755-56 (8th Cir. 2007), in part because ‘probation is not merely a reduced sentence, but a different type of sentence altogether.’ Id. at 756 (citing 18 U.S.C. § 3561; USSG § 5B1 (intro. comment.)). The Supreme Court in Gall, however, emphasized that ‘[o]ffenders on probation are subject to several standard conditions that substantially restrict their liberty, 128 S. Ct. at 595, and affirmed a sentence of probation for a drug trafficker with an advisory guidelines range of 30 to 37 months' imprisonment. The Court also indicated that a sentence of probation would be permissible for a drug trafficking offense with a guidelines range of 30-37 months' imprisonment, if there were ‘compelling family circumstances where individuals [would] be very badly hurt in the defendant's family if no one is available to take care of them.’ Id. at 602 (internal quotation omitted).

“The district court here imposed the standard conditions of probation, which Gall described as a ‘substantial restriction of freedom,’ id. at 595, and added a special condition requiring Lehmann to serve six months in community confinement. In explaining its decision not to impose a term of imprisonment, the district court accepted expert testimony that sending Lehmann to prison would have a very negative effect on the emotional development of her young son, which is not materially different from the sort of ‘compelling family circumstances’ that the Supreme Court indicated would justify probation for a drug trafficker with a similar advisory guidelines range. Id. at 602. Given the impermissibility of ‘proportionality’ review, and the requisite deference due to the district court, we cannot conclude that the sentence imposed was substantively unreasonable in light of § 3553(a) and Gall. See Gall, 128 S. Ct. at 597 (‘The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court’). Accordingly, the judgment is affirmed.”

U.S. v. Sexton, No. 05-6412 (6th Cir. Jan. 11, 2008) (Judge Rogers)

This case is noted for Judge Merritt's passionate dissent in which he railed against a decision by the majority of his panel to affirm routinely three lengthy above-the-Guidelines sentences imposed on the defendants in this drug case.

Judge Merritt has long been a critic of the Federal Sentencing Guidelines. One noteworthy example of outspoken criticism was his memorable dissent in U.S. v. Silverman, 976 F.2d 1502 (6th Cir. Sept. 22, 1992), where he wrote: “[In this case], we see the 'relevant conduct' system run amok. Unreliable double, triple and quadruple hearsay information provided by the prosecution about other uncharged crimes is used to increase substantially the defendants' sentences over the original level of punishment provided in the Sentencing Guidelines for the crimes for which the defendants have been convicted.”

Over the years since Silverman, Judge Merritt’s views about the Guidelines have not changed much. In his dissent in the instant case, he sharply criticized the present “muddled system” of ”rote sentencing” in which the sentencing judge simply “ratchets up the sentence instead of engaging in anything close to [a] deliberative or reflective process.” He explained:

“Except for those judges and lawyers who prefer to continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened -- continuing under the pretext that the guidelines are only ‘advisory’ instead of being considered only as a starting point against the backdrop of the more sensible and humane penological goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.

“By ratcheting up the sentence, as is typical under the guidelines, piling aggravator on aggravator, the District Court, (as though Booker had never been decided), simply restored its old guideline sentences of 20 years in prison for Sexton, 16 years in prison for Legg, and 12 years in prison for Romans -- all for a victimless drug crime.

“Such harsh sentences are par for the course under the guidelines. . . . From the beginning, the guidelines have emphasized collectives, not individuals; and individualized sentencing by federal judges, the weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation, has become a relic of the past. The creation of these guidelines involved the breakdown of behavior into smaller and smaller parts and categories of aggravators or enhancements without consideration of other important individual factors.”

More on the Crack-Cocaine Retroactivity Maze

In the 11/12/07 issue of P&J, we presented a brief history of the events that led to the Sentencing Commission's recent decisions first to reduce the penalties on some crack-cocaine related offenses and then to make those amendments retroactive. (See "Cutting Through The Guidelines Crack-Cocaine Retroactivity Maze.") We also promised to keep our readers advised of new developments that might affect plans to file for retroactive relief based on those new amendments to the Guidelines. In that vein, we note the following materials:

• "Practice Heads Up On (Crack) Retroactivity," by Sara E. Noonan, Sentencing Resource Counsel, Federal Defender's Office, Boston, MA.

• "Sentencing Reductions Under the Retroactive Crack Amendment," a 23-page memo dated Jan. 2, 2008, prepared by the Sentencing Resource Counsel of the Federal Defender's Office, Washington, DC.

• We have received from Louis C. Allen, the Federal Public Defender from the M.D.N.C., three forms which may be of use to counsel seeking to advise clients in prison of the possibility of sentence reductions based on the crack amendments. Those forms are: (a) a proposed letter from counsel to an inmate client explaining the possibility of a sentence reduction based on the crack amendment; (b) a proposed form of a motion for the appointment of counsel; and (c) a financial affidavit to be completed and filed by the inmate client with the motion for the appointment of counsel.

For subsequent updates, go to: www.ussguide.com/members/CrackCocaine/Crack-Index.cfm

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