The procedural rules regarding writs of habeas corpus found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) are complicated and complying with them are often difficult. Many appellate decisions have been written regarding the rules. Yesterday, the Seventh Circuit Court of Appeals issued a decision interpreting several issues.

Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program).

On appeal the issue was whether the trial court had the authority to lengthen the sentence based upon the need for rehabilitation.

The governing law is the Sentencing Reform Act of 1984. In determining a sentence the courts are mandated to consider four factors:

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

But the courts are also mandated to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹ While the term “recognize” may be rather weak the Supreme Court found that it was mandatory.

But perhaps the best argument against extending sentences to accommodate rehabilitation is the story of Alejandra Tapia, herself. Despite the judge’s giving her an extended sentence ² in order that she could complete the RDAP program during her interview with BOP staff after she was sentenced she stated that she did not want to enter the RDAP program and she was not assigned to the program.

It is certainly possible, as Justice Sotomayor suggested that on resentencing that she will get the same 51 month sentence.

Cedric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll were convicted in separate matters of crimes involving crack cocaine. They applied to their respective courts pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction. Under this section inmates may apply for a sentence reduction, if following their sentencing, the United States Sentencing Commission reduces the guidelines for the offense of conviction. In 2007 the Sentencing Commission reduced by two levels the guideline for most crack cocaine offenses, in order to reduced the disparity in the law between sentences for crack cocaine and powder cocaine. The law gives judges the discretion to reduce sentences after reviewing the factors found in 18 U.S.C. § 3553(a). The section provides the factors a judge must consider in sentencing a defendant.

In resentencing the Court must follow a two step process. First it must consider the defendant’s eligibility under the statute and second it must consider the 3553(a) factors. In the cases of Henderson, McClune, and Kirkendall, all of whom received below guidelines sentences the judges on resentencing said that they had reviewed the 3553(a) factors at the time of sentencing and saw no reason to reconsider the sentence. Since each received a below guidelines sentence during the original sentencing the law allows the judge to give a similar reduction based upon the new guidelines but prior to using his/her discretion the Court must reconsider the 3553(a) factors. Therefore The Fifth Circuit remanded the matters to the trial courts for reconsideration of the factors.

Marcus Eugene Jacobs plead guilty to possessing stolen mail. As part of the plea agreement he agreed to waive his right to appeal. However an exception was allowed if the court upwardly departed from the guidelines, not requested by the government.

Jacobs’ guidelines were four to ten months. The government recommended seven months. In taking the plea the judge was very careful to make sure that Jacobs understood that he was waiving the right to appeal unless the judge granted an upward departure. But the judge did not discuss the possibility of a variance.

Under the Guidelines a three-part framework exists. First the court

(1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole

A variance is a sentence outside the guideline structure. It is based on 18 U.S.C. § 3553(a). which sets forth a number of characteristics that a court should take into consideration in sentencing. Subdivision 3553(a)(1) states “the nature and circumstances of the offense and the history and characteristics of the defendant;” At sentencing the judge pointed out Jacobs’ significant criminal history. Section 3553(a)(2)(B) lists “to afford adequate deterrence to criminal conduct;” and at sentencing the court pointed out the failures of shorter sentences in the past to deter criminal behavior.

Variances and departures are treated differently. Departures require the court to give prior notice of its intention to depart. Variances do not require notice. ¹

I am willing to bet that prior to signing the plea agreement Jacobs’ attorney discussed with him the nature of an upward departure but did not discuss the possibility of a variance. It would surprize me if Jacobs understood prior to entering into the plea agreement that the judge may vary from the guidelines. In this case the final sentence was 260 per cent of the upper guideline. Assuming, I am correct, the waiver cannot be considered “knowing and voluntary.” In this case a habeas for incompetence of counsel will probably follow.

This Guidelines are very complicated. A lawyer representing a defendant in a Federal case must go over any plea agreement with a fine toothed comb and make sure that the defendant understands every detail of the agreement. In this case the lawyer should have insisted that the agreement preserve the right to appeal if the sentence exceeded the guidelines instead of limiting the right to appeal to cases in which an upward departure was granted.

The Supreme Court ruled, yesterday, in Pepper v. United States that following an appeal that requires a resentencing the trial court can consider the defendant’s post trial rehabilitation.

Jason Pepper plead guilty to participating in a methamphetamine conspiracy. Although the guidelines were 97 to 121 months the court sentenced him to 24 months based upon his giving substantial assistance to the government. The prosecution only recommended a 15 per cent reduction and it appealed to the Eighth Circuit Court of Appeals. The appellate court granted the appeal and ordered the trial court to resentence Pepper.

By the time of the resentencing Pepper was out of custody. He testified that he was going to a junior college and that he had made straight A’s. He also had a job where he was doing quite well. His father testified that he had not seen Jason for five years prior to his conviction but that Jason was more mature now and that they were getting along well. His parole officer also testified that Jason was doing well and that 24 months satisfied the goals of incarceration. Furthermore while Jason was in prison he completed a 500 hour drug program and he was no longer using narcotics.

The Court again sentenced him to 24 months based upon a 40 per cent reduction from the guidelines for substantial assistance and a 59 per cent reduction for inter alia post sentencing rehabilitation. The government again appealed. The Eighth Circuit again reversed finding that use of post conviction rehabilitation is inappropriate.

On the third sentencing he was sentenced to 65 months and he appealed. The Eighth Circuit affirmed and the Supreme Court granted certiorari. It sent it back to the Eighth Circuit for consideration of Gall v. United States, 552 U. S. 38 (2007). The Eighth Circuit found Gall inappropriate and returned the case to the trial court for resentencing. He was again sentenced to 65 months and appealed. The Eighth Circuit affirmed and the Supreme Court again granted certiorari.

This time it ruled that there is a long history of allowing trial judges to use a broad range of evidence in sentencing and 18 USC 3577 states:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Despite the fact that 18 U. S. C. §3742(g)(2) limits evidence at a resentencing to the evidence considered at the original sentencing the Supreme Court found that evidence of rehabilitation can be used at resentencing. Section 18 U. S. C. 3742(g)(2) along with the guidelines was part of the Sentencing Reform Act of 1984. While the mandatory nature of the guidelines and some sections were found unconstitutional in Booker the Booker Court did not discuss Section 3742(g)(2). However the same reasons apply and Section 3742(g)(2) can lead to unconstitutionally high sentences and therefore it must be found unconstitutional.

But one has to wonder if evidence of rehabilitation can be used to reduce the sentencing on resentencing after an appeal why not allow a defendant, after they have completed a significant part of their sentence, to apply for a reduction if they show evidence of rehabilitation. Why not allow rehabilitated convicts to return to court while completing their sentence or while on supervised release to show that they have been rehabilitated and no longer need to be incarcerated or under supervision? If they are no longer likely to reoffend and they are no longer a danger to society they should be released. This is particularly true if they can show that they have learned coping and employment skills that will allow them to survive without committing future crimes. By shortening incarceration periods it will also save tax dollars. This will give convicts a considerable impetus to get job skills, stop using drugs, and become rehabilitated. Eventually they will be released anyway and if they can prove rehabilitation we will all be safer.

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota.

Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded and he was resentenced. When he was resentenced the court enhanced his sentence for using a dangerous weapon and in the current appeal he challenged the use of the enhancement.

As a result of the enhancement he was sentenced to 352 months. Sometimes it seems like it’s not worth appealing but the appellate court ruled that the trial court was within its discretion to add the enhancement on resentencing even though it had not been originally used.

As to Flint Thomas Red Feather the trial court, in applying the guidelines, used a guideline for one who conspires to sell between five and fifteen kilograms of cocaines and sentenced him to 151 months. Red Feather argued that he only sold 3 kilograms 14 ounces before he moved off the reservation and withdrew from the conspiracy. But the appellate court ruled that the question was not how much cocaine Red Feather sold but rather how much it was foreseeable that he would sell during the pendency of the conspiracy. Looking at it this way the appellate court agreed with the trial court that he should be sentenced as if he had sold five kilograms.

Otis Jones plead guilty to various drug offenses and he was sentenced to 151 months in prison. He appealed the sentence to the Eighth Circuit Court of Appeals.

First, he argued that the District Court improperly aggravated his sentencing guidelines by adding two levels to his Guidelines for having a gun in connection with a drug offense. Two people testified at his sentencing hearing regarding his use of a gun in connection with his drug deals. While one of the witnesses was unsure about the type of gun Jones possessed both witnesses were sure that he used a gun. Furthermore the witnesses were expecting to receive consideration at their sentencing hearings in exchange for their testimony. The trial judge found the witnesses to be credible and therefore the appellate court ruled that the trial judge properly aggravated the sentence for possession of a gun in connection with a drug offense.

Jones’ second argument was that the court should have given him credit for time he spent in a local jail prior to his sentencing but after his arrest and indictment. The indictment followed the Jones’ arrest on a state probation violation for which he was sentenced to between three and six years in prison.

The District Court judge sentenced Jones pursuant to Section 5G1.3(c) of the Sentencing Guidelines. Section 5G1.3(c) allows a judge to impose a sentence that runs “concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment.” Guidelines section 5G1.3(b), allows a judge to credit a defendant for a period of imprisonment served on an undischarged term of imprisonment if the undischarged sentence “resulted from another offense that [1] is relevant conduct to the instant offense of [federal] conviction . . . and that [2] was the basis for an increase in the offense level for the instant offense.” While the state prison term was for possession of a weapon by a convicted felon it was not relevant conduct for the Federal conviction and therefore the appellate court ruled that the District Court, correctly, did not sentence him under Section 5G1.3(c) and therefore he was not eligible to receive concurrent credits for the period that he was in state custody prior to being sentenced in the Federal case.

When a defendant has both Federal and State cases time the sentencing of each is a tricky and difficult task for the lawyer. It is not something that can always be controlled but it is important to try to time the sentencing so that the defendant gets sentenced to concurrent time and so that he/she gets placed in the best facility.

The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.

Glen Ray Briggs plead guilty to a series of crimes involving methamphetamine and cocaine. The most serious charges related to his participation in a reverse sting operation organized by government agents to rob an alleged stash house.

As part of the plans for the robbery Briggs was to brings guns to be used in the robbery. He was arrested after he got into a vehicle that was going to be used in the robbery. No guns were found.

While the Ninth Circuit court refused refused to allow him to withdraw his plea it found that the two level enhancement for possession of a weapon was inappropriate since no weapon was found.

Briggs claimed that he should be allowed to withdraw his plea since he did not understand the consequences of the plea. Specifically he expected a sentence of approximately 200 months and the actual sentence was 324 months. He pointed to the fact that he has an IQ of 70 as a reason he did not understand the possible consequence. But the court pointed out that it is only in rare circumstances that a plea can be withdrawn for misunderstanding the possible sentence. It examined the plea transcript and the psychiatric records. Both point to Briggs understanding the plea and asking questions when he did not understand the proceedings.

Briggs also claimed that he should be allowed to withdraw his plea because of sentencing entrapment. Sentencing entrapment occurs when the government pushes the quantity of drugs up beyond the expectation of the defendant in order to increase the possible sentence. While in a reverse sting the government has practically total control over the amount of drugs and the court must be leery of drug quantities the facts here showed that Briggs was excited over the large quantity to be seized and he had no problem with it. In this circumstance there is no sentencing entrapment since Briggs agreed to the quantity.

The case was remanded for reconsideration of the gun enhancement.