SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions.  If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul.  However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions.  Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule.  As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others.  And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.”  Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.”  At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.”  The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a plea would pretty clearly not fall into the category of harmless error.  What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

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SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections

So just how advisory are the “advisory” federal sentencing guidelines?  That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.

The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.”  Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts.  Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences.  Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.

The new system also raised Ex Post Facto Clause issues, which divided the lower courts.  Peugh nicely illustrates the problem.

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Seventh Circuit: Defendant’s Punches Created Substantial Risk of Serious Bodily Injury

In the course of being arrested on drug charges, Freddy Alexander took a couple of swings at a police officer.  As Alexander’s sentencing judge saw things, these punches boosted his guidelines offense level by six under §3A1.2(c)(1), which applies when a defendant creates a substantial risk of serious bodily injury to a law enforcement officer.  This despite the fact that Alexander only connected with one of his punches and caused only a minor injury that did not require medical attention.

The Seventh Circuit nonetheless affirmed Alexander’s sentence earlier today in United States v. Alexander (No. 12-1084) (per curiam).  The court observed that “§3A1.2(c)(1) applies to substantial risk of serious injury and does not require that the defendant actually have inflicted serious injury.”  Fair enough, but why think that Alexander’s punches posed such a risk?  I don’t know anything about Alexander’s size and strength, but I’m pretty sure that if I took a couple of swings at someone, I’d be much more likely to injure myself than my opponent.   (more…)

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Fourth Amendment Not Violated by Driver’s Detention for 39 Minutes After Being Stopped for Speeding, Seventh Circuit Holds

An Illinois State Trooper pulled over Oscar Bueno for driving his van 69 MPH in a 65-MPH zone.  Trooper Owen decided to give Bueno a written warning for speeding, but various aspects of the situation aroused his suspicions that Bueno might be transporting contraband.  After conducting further investigation, Owen determined that Bueno’s van carried drug money bound for Mexico.  Thirty-nine minutes into the stop, Bueno was handcuffed and taken into custody.

After his conviction on drug trafficking charges, Bueno argued on appeal that evidence from the stop should be suppressed since the stop had been unreasonably prolonged in violation of the Fourth Amendment.  Earlier today, the Seventh Circuit affirmed in United States v. Bueno (No. 11-2532) (Bauer, J.).

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Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

At sentencing, defendants are expected to express remorse for their crimes.  Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis.  But what if the defendant chooses to say nothing at all at sentencing?  On the one hand, a judge might infer a lack of remorse from the defendant’s silence.  But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.).  Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing.  The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis.  On appeal, Keskes argued that the sentence violated his right to remain silent.  The Seventh Circuit, however, affirmed.

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Seventh Circuit Considers Scope of Conspiracy Liability for Retail Seller of Illegal Drugs

Herbert Phipps was a meth addict and retail dealer.  After being nabbed by law enforcement agents, he was charged along with several others in a large conspiracy case.  Curiously, prosecutors chose to charge Phipps only with a conspiracy count, and not with a substantive drug trafficking offense.  The government’s theory was that Phipps conspired with his wholesale supplier.  Although the jury accepted this theory and convicted Phipps, the sufficiency of the evidence of a conspiracy became the most difficult issue facing the Seventh Circuit in his appeal.

Phipps could not be convicted of conspiracy unless there was another party to the conspiracy.  His guilt thus required that his wholesale dealer be a coconspirator, and whether this was so depended on the wholesaler’s intent.  As the Seventh Circuit observed,

Conspiracy is agreement, and it takes two to agree. “A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.” United States v. Lechuga, supra, 994 F.2d at 349. If Phipps’s supplier was indifferent to Phipps’s intended use for the drugs, even if he knew that it was to resell them, he is merely an aider and abettor of Phipps’s retail sale of illegal drugs and there was no conspiracy between them.  (10)

In addressing the application of conspiracy law to wholesaler-retailer relationships, the Seventh Circuit was hardly writing on a blank slate.  (more…)

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District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds

The U.S. Sentencing Commission wisely made its 2011 reductions to the crack sentencing guidelines retroactive, but this decision left district judges with discretion to deny sentence-reduction requests based on, among other things, a defendant’s post-sentencing misconduct.

Larry Purnell has learned the scope of this discretion the hard way.  Purnell pled guilty to crack and firearms offenses in 2007.  In his plea colloquy, Purnell admitted to the gun allegations under oath.  Based on various concessions from the government in return for his guilty plea, Purnell’s guidelines range for the crack offense was 78-97 months, and he received a sentence at the bottom of this range.  Despite the relative lenience of this treatment, Purnell later mounted collateral attacks on the gun conviction, claiming that his alleged weapon was really only a BB gun — in contradiction to his own statements at the plea colloquy.

These collateral attacks failed, but Purnell was given a fresh opportunity for a sentence reduction thanks to the Commission’s retroactive changes to the crack guidelines.   (more…)

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Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.   (more…)

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Who Has Authority to Consent to a Search? Still No “Crisp Answer”

Police wished to search the apartment of Victor Garcia, whom they had just arrested for drug trafficking.  They did not wish to obtain a warrant.  Fortunately, they found Garcia’s 18-year-old niece, who had a key and was most accommodating.  Inside the apartment, the officers found 13 kilograms of cocaine.  Could the evidence be used against Garcia?  Yes, said the Northern District of Illinois, holding that the officers had a reasonable belief that the niece had been authorized to allow a search of her uncle’s apartment.

On appeal, the Seventh Circuit affirmed earlier today in United States v. Garcia (No. 12-1805).

Judge Posner, writing for the panel, observed, “The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general treatment and probably never will.”  (4)

Posner described the problem in terms of a spectrum without a clear dividing line:

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Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea.  Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea.  While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation).  Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.  (more…)

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