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United States v. Fleming, No. 17-3954


Fleming was convicted of possessing cocaine with intent to distribute.  His total offense level was 21, and his criminal history category was II.  He was thought to be a career offender, but his priors did not qualify. His range of punishment was 41 to 51 months, but his mandatory minimum was 60 months.  

 

At the beginning of the hearing the district court provided the parties with copies of a local news article that had been published on Cleveland.com about an Ohio State report documenting an increase in overdose deaths in the state.  The article focused on opiod overdoses mainly, only mentioning cocaine briefly and only in connection with opioids. The article was a little over 200 words. The article observed that “ there are indications that cocaine is increasingly being used with fentanyl and other opiates,” and that 80.2% of all cocaine overdose deaths in 2016 also involved an opiate.  

 

There was no suggestion that there would be a variance at the beginning of the hearing or that the court was considering one.  Both the government and the defense made arguments and asked a sentence of 60 months. Neither side mentioned the article or community harm by opioids.  

 

The court varied upward and imposed a sentence of 120 months in prison.  The court said that “the Guidelines were not ‘sufficient to address the kind of issues that we’re now having with this type of trafficking in these large amounts of cocaine.’”  The district court said that the article was “[i]n large part . . . some indication of why long, lengthy sentences are necessary to try and deter” cocaine trafficking.” The court made no reference to Fleming’s near-status as a career offender.  Fleming appealed stating that his sentence was procedurally and substantively unreasonable.

 

The court noted that a sentence can be procedurally unreasonable when “the facts or issues on which the district court relied to impose a variance came as a surprise and [the defendant’s] presentation to the court was prejudiced by the surprise.”  The court also said that the reliance on information from the article from Clevelnad.com was a surprise and prejudicial to Fleming’s sentencing presentation and as such the sentence was procedurally unreasonable. Fleming’s case was possession of cocaine, not the opioids that were discussed in the article.  Plus there was no evidence of opioids in his case.

 

The court also noted that “the weight the court ultimately assigned to [unexpected] considerations” may contribute to the surprise.  In this case, the court clearly stated that the article was important to the decision. Fleming’s inability to contest the veracity or relevance was part of the prejudice:  He was not able to test the veracity or relevance of the information in the article because it was given to him at the beginning of the hearing.

 

Further, although this was presented to the parties at the beginning of the sentencing hearing they didn’t know how it was going to be used until after counsel made his argument.  

 

The government claimed that the plain error doctrine applied to this case.  Plain error is “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”

 

The court stated that the case was error for the reasons already stated.  The court stated that it was obvious because he district court should have realized that the Cleveland.com article contained information that the parties might reasonably not have anticipated would be relevant. The district court should also have been aware that the structure of the sentencing hearing—in which the parties were given the article only at the start of the hearing, the underlying state report was not provided at all, and the district court did not explain why the article was relevant until after the parties’ arguments—would prevent Fleming from commenting on that information in a meaningful way.”  

 

The court also said that Fleming’s substantial rights were affected.  “A sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, she would have received a more favorable sentence.”  If the judge had given notice of the court’s intent to use the, article then counsel would have been able to persuade that the article was unreliable.

 

The Court determined that the error “affected the fairness, integrity, or public reputation of the judicial proceedings.”  because “Fleming may serve an additional five years in prison based on potentially unreliable and extraneous information that was interjected into the proceedings in a way that ensured no meaningful adversarial testing.”  

 

Because the court determined that the case was procedurally unreasonable by a plain error standard the court determined that it was not necessary to consider substantive unreasonableness.  

 

Fleming also asked that the case be reassigned to a different judge on remand but the court indicated that was not justified in the record.  The court uses three factors to determine whether reassignment is warranted:

 

(1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;

(2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

 

Fleming said that reassignment of the case to a different judge was necessary because the judge stated that Fleming had good fortune in avoiding career offender status and that showed that the judge was predisposed to giving Fleming a higher sentence.  However, the district judge also noted that he could not and would not consider Fleming’s “close call” in escaping the career offender enhancement against him. And while Fleming also points out that the Judge indicated the strong likelihood that Fleming would qualify as a career offender, that was before it was determined that he was not a career offender.  Thus the Circuit court declined to hold that Fleming’s case should be reassigned to a different Judge.

 

The Sixth Circuit vacated the sentence and remanded the case for resentencing.  No. 17-3954

McCalla pled guilty to conspiracy to possess at least five kilograms of cocaine with intent to distribute. The Mandatory minimum, in that case, was ten years. His range of punishment was 136 to 168 months. He was sentenced to 126 moths and the court found that a sentence below the advisory guideline range would be sufficient but not greater thank necessary to comply with the requirements of section 3553. McCalla was informed that he had the right to appeal. He did not file a direct appeal. In his 2255 motion he alleged that he would have appealed his sentence if counsel had consulted him and that counsel knew that McCalla was unhappy with the indictment and sentence. McCalla also stated that he “expressed his desire to challenge [this] unbelievable result” and requested an evidentiary hearing.

The magistrate replied that he McCalla’s motion should be denied, that McCalla did not ask counsel to file an appeal, that counsel did not have a duty to consult McCalla and that “no rational defendant would have wonted to appeal.” The magistrate ruled that McCalla was not entitled to an evidentiary hearing because his claim was meritless. The District court adopted the recommendation of the Magistrate’s court and denied the certificate of appealability.

On appeal the court started by stating that both a direct appeal and effective assistance of counsel are rights. Further, the accused has the authority to make certain decisions regarding the case such as whether to take the appeal. Counsel is to advise the defendant about the advantages and disadvantages of taking an appeal and make a reasonable effort to discover the defendant’s wishes. When a defendant has not instructed counsel to file a notice of appeal there is a constitutional duty to consult when a defendant reasonably demonstrated to counsel that he was interested in appealing. When counsel’s performance deprives a defendant of an appeal that he would have otherwise taken then that is prejudice even if the appeal would not have won.

McCalla’s statement that he wanted to challenge his sentence showed that he was interested in appealing. Counsel was to advise McCalla about the advantages of taking an appeal. Counsel did not. If counsel had done their duty then McCalla would have asked his attorney to appeal the sentence. This showed that McCalla had alleged facts, that, if true, established a successful ineffective assistance of counsel claim entitling him to an appeal Neither the fact that he not have been successful nor the fact that the sentencing judge notified Thompson that he had a right to appeal changes the conclusion of the court. This means that the district court abused their discretion when they denied his evidentiary hearing on this.

The Eleventh circuit reversed with orders to schedule an evidentiary hearing.

McCalla v. United States. No. 16-15623, 2018 WL 1747722

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

The Tenth Circuit recently reversed in United States v. Dahda. Dahda was convicted on a drug conspiracy for over 1,000 kilograms or more of marijuana. On appeal, Dahda alleged seven grounds for relief, including that the district court erred in applying Dahda’s base offense level by miscalculating the amount of marijuana attributed to Dahda.

While the rest of the grounds were rejected on appeal, the Tenth Circuit reversed on Dahda’s claim that the district court miscalculated the base offense level. The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing a ‘minimum indicia of reliability.’”

However, the Tenth Circuit found the information used to sustain Dahda’s offense level was not reliable. The appellate court found that the quantities of marijuana found in pallets varied. The government’s witnesses indicated that each pallet had between five to ten to eighty pounds of marijuana. Toward the end of the conspiracy, each pallet usually contained 80 pounds, but there “could have been” times when the pallets contained more than 80 pounds. There was also no indication of the time periods that the government’s witnesses were referencing when discussing the pallets that contained 80 pounds. The court found that there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Dahda and as such, it was insufficient. The court also rejected the government’s harmless error analysis.

The Tenth Circuit reversed, United States v. Dahda, No. 15-3237

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

2255 motions

United States v. Wheeler, __F.3d__, 2018 WL 1514418 (4th Cir. 2018)

The Fourth Circuit recently handed down a very important and precedential decision on the applicability of the savings clause to the legality of a petitioner’s sentence.

Appellant Gerald Wheeler was charged in the United States District Court for the Western District of North Carolina of conspiracy to possess with intent to distribute cocaine, cocaine base, and marijuana, possession of a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Wheeler pled guilty pursuant to a plea agreement, which agreed to an enhanced penalty pursuant to 21 U.S.C. 851 for the drug count.

In 2008, the district court sentenced Wheeler to 120 months in prison on Count One based on the statutory mandatory minimum under 21 U.S.C. 841(b)(1)(B) and 851. The Fourth Circuit affirmed Wheeler’s sentence in 2009. United States v. Wheeler, 329 Fed. Appx. 481 (4th Cir. 2009).

In 2010, Wheeler filed a motion pursuant to 28 U.S.C. 2255 alleging his counsel was ineffective for, inter alia, failing to argue that Wheeler’s 1996 North Carolina conviction for possession of cocaine did not qualify to enhance his sentence under section 851. The district court dismissed Wheeler’s 2255 motion as foreclosed by the Fourth Circuit’s holdings in United States v. Harp, 406 F.3d 242 (4th Cir. 2005) and United States v. Simmons, 635 F.3d 140 (4th Cir. 2011). Those decisions held, “[T]o determine whether a conviction is for a crime punishable by a prison term exceeding one year [under North Carolina law], … we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Harp, 406 F.3d at 246; Simmons, 635 F.3d at 146. Pursuant to this reasoning, the district court found that Wheeler received a 6 to 8-month sentence for the 1996 conviction, thus, “his offense was punishable by imprisonment for more than a year” because it was a Class I felony which carried a maximum sentence of 15 months. Wheeler filed a notice of appeal and motion for COA with the Fourth Circuit on August 3, 2011.

While Wheeler’s motion for COA was pending, the Fourth Circuit overturned Simmons on rehearing en banc. The court determined that “in deciding whether a sentencing enhancement was appropriate under the Controlled Substances Act, a district court could no longer look to a hypothetical defendant with the worst possible criminal history…. [A] sentencing court may only consider the maximum possible sentence that the particular defendant could have received.” United States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013). Even so, the Fourth Circuit denied Wheeler’s motion for COA because it determined Simmons did not apply retroactively to cases on collateral review.

Wheeler subsequently submitted a request for authorization to file a second 2255 motion with an alternative petition pursuant to 28 U.S.C. 2241 seeking application of the savings clause (28 U.S.C. 2255(e)). The Fourth Circuit denied Wheeler’s request to file a second or successive 2255 but did not address his 2241 petition which was pending at the time before the district court.

The district court stayed the 2241 petition pending the resolution of United States v. Surratt, No. 14-6851. The majority panel in Surratt distinguished the court’s decision in In re Jones, which granted savings clause relief after setting forth a three-part test based on the legality of a petitioner’s conviction, but not his sentence. Following Surratt, the district court denied Wheeler’s 2241 petition because it did not challenge the legality of his conviction, only his sentence.

Wheeler once again appealed, and the Fourth Circuit subsequently granted rehearing en banc in Surratt, thus vacating the panel’s prior opinion. However, rehearing in Surratt was found to be moot after his sentence was commuted by President Obama. The Fourth Circuit lifted the stay pending rehearing and has finally addressed the merits of Wheeler’s 2241 claims.

First, the Fourth Circuit addressed the government’s “shifting position” on jurisdiction. The government initially conceded that Wheeler met the savings clause requirements before the district court. However, on appeal, the government did an “about-face,” and argued that the court was without jurisdiction because Wheeler had failed to satisfy the savings clause requirements. The Fourth Circuit concluded that “[b]ecause the savings clause requirements are jurisdictional, we must reject Appellant’s waiver argument. Though the Government’s change of position is a ‘distasteful occurrence[ ]’ and is ‘not to be encouraged, its about-face is irrelevant to our resolution of’ this appeal.”

The court then turned to whether Wheeler’s 2241 petition satisfied the savings clause requirements of the circuit. The Fourth Circuit’s seminal decision, In re Jones, held that a petitioner must satisfy three elements to meet the savings clause requirements:

[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of 2255 because the new rule is not one of constitutional law.

The question now before the court was whether Jones applies to sentencing arguments. The Fourth Circuit held it does and announced a new savings clause test for erroneous sentences:

“[W]e conclude that 2255 is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements of 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

After applying the new savings clause test to Wheeler’s 2241 claims, the Fourth Circuit held that Wheeler did, in fact, show that 2255 is inadequate and ineffective to test the legality of his detention.

The Fourth Circuit VACATED and REMANDED to the district court to have his 2241 petition addressed on the merits.

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.