SCOTUS Takes New Cases on Right to Effective Assistance in Plea Bargaining

Yesterday, the Supreme Court granted review in two new cases on the right to the effective assistance of counsel in the plea-bargaining setting.  I’ll comment briefly today on Missouri v. Frye (No. 10-444), and leave Lafler v. Cooper (No. 10-209) for tomorrow.

Although Frye presents an unusual set of facts, the petitioner’s argument raises quite fundamental and broadly important questions about the nature of the right to effective assistance.  In brief, the state charged Frye with a felony, but offered to dismiss the felony charge if Frye would plead guilty to a misdemeanor.  Frye’s lawyer never communicated this option to Frye, and the offer eventually expired.  Frye then pled guilty to the felony charge without the benefit of a deal and was sentenced to three years in prison — presumably a much longer sentence than would have been possible if he had taken the misdemeanor deal.

Sounds to me like this rather egregious mistake by counsel easily satisfies the familiar performance and prejudice prongs of the Strickland test, and an appellate court in Missouri so held.

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Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).

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Rethinking the Categoric Approach to the ACCA

In anticipation of oral argument next week in Sykes v. United States, I’ve been thinking about the “categoric approach” the Court has been using to decide whether a prior conviction counts as a “violent felony” under the Armed Career Criminal Act.  (See my post here for background.)  The categoric approach requires an examination of the formal elements of the crime of conviction and a consideration of whether an offense so defined would typically (in the words of the statute) “involve[] conduct that presents a serious potential risk of physical injury to another.”  The alternative would be to consider whether the specific offender’s conduct — as opposed to a typical offender’s conduct — presented a “serious potential risk.”

The statutory language itself strikes me as ambiguous on this point.  Normally, I would favor falling back on the rule of lenity to resolve ambiguities in criminal statutes, but it is not clear to me which way lenity cuts in this setting.  Some defendants would be better off if their own conduct were the focus of the inquiry, while other defendants would benefit from a focus on the typical case.

When the Court first embraced the categoric approach in Taylor v. United States, 495 U.S. 575 (1990), the Court relied on legislative history that seemed to indicate Congress was contemplating the use of generic offense categories. 

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SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.   Continue reading “SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program”

SCOTUS to Address Requirements for Federal Murder Statute

Yesterday, the Supreme Court agreed to decide what “federal nexus” must be proven in a murder prosecution under 18 U.S.C. § 1512(a)(1)(C).  The statute makes it a federal crime to kill “another person, with intent to . . . prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a federal offense.”  The specific question before the Court is whether a defendant may be “convicted of murder under § 1512(a)(1)(C) without proof that information regarding a possible federal crime would have been transferred from the victim to federal law enforcement officers or judges.”  Additionally, the case presents interesting questions regarding the interpretation of statutory state-of-mind requirements and the scope of federal criminal jurisdiction.

The decision below was United States v. Fowler, 603 F.3d 702 (11th Cir. 2010).  Here’s what happened.

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SCOTUS Okays Piling on Mandatory Minimums — In the Name of Proportionality?

Earlier today, the Supreme Court held in Abbott v. United States that the five-year mandatory minimum prescribed by 18 U.S.C. § 924(c) must be imposed consecutively to other mandatory minimums imposed pursuant to other statutes.  The 924(c) mandatory minimum targets defendants who have used, carried, or possessed a firearm in connection with a crime of violence or a drug trafficking crime.

The defendants in Abbott illustrate how the same conduct that triggers 924(c) can also trigger other mandatory minimums.  Abbott himself was a felon with an extensive criminal history.  As a result, his possession of a firearm in connection with a drug trafficking crime also subjected him to the fifteen-year mandatory minimum of the Armed Career Criminal Act.  Adding this to the five years under 924(c), Abbott was sentenced to twenty years in prison.

Meanwhile, Gould, the other defendant in Abbott, possessed his firearm in connection with a crack offense.  Under the stiff mandatory minimum statute for dealing crack, Gould faced an additional ten-year minimum on top of the 924(c) five.

In the Supreme Court, Abbott and Gould argued that, as a matter of statutory interpretation, their 924(c) minimums need not have been imposed consecutively to their other, longer minimums.  The Court, however, affirmed both sentences.   Continue reading “SCOTUS Okays Piling on Mandatory Minimums — In the Name of Proportionality?”

SCOTUS to Rule on Meaning of “Cocaine Base”

In a 1986 law that must surely rate as one of Congress’s most ill-informed overreactions to a high-profile tragedy– the cocaine-related death of college basketball star Len Bias — a new mandatory minimum ten-year sentence was created for drug offenders involved in dealing 50 or more grams of “cocaine base.”  Never mind that Bias used the powder form of cocaine.  Never mind that crack — the form of cocaine that everyone was really concerned about at the time — is only one type of cocaine base.  Congress instead chose to direct the harsh new penalties at cocaine base, a category that is narrower than all cocaine, but broader than just crack (at least if the term “cocaine base” is understood literally).  As is now well known, the result of this unfortunate law has been to create massive racial disparities in federal drug sentencing between white defendants (who are typically involved with powder) and black defendants (who are more typically involved with crack). 

Although “cocaine base” cases normally involve what is undisputably crack, defendants have from time to time litigated whether a particular susbtance really triggers the ten-year minimum.  These cases have produced a longstanding circuit split, with six circuits (the First, Second, Third, Fourth, Fifth, and Tenth) reading “cocaine base” to encompass all forms cocaine that are chemically classified as a base, and five circuits holding that “cocaine base” means more narrowly what Congress was really concerned about, i.e., crack and other types of smokable cocaine base.  With today’s cert. grant in DePierre v. United States, 599 U.S. 25 (1st Cir. 2010), the Supreme Court appears poised finally to resolve the issue.  Continue reading “SCOTUS to Rule on Meaning of “Cocaine Base””

Upcoming SCOTUS Oral Arguments

With the new term Supreme Court term kicking off next week, I’ve been previewing the upcoming oral arguments.  Here are the cases I am especially interested in following:

United States v. Abbott (09-479) & Gould v. United States (09-7073): is a defendant eligible for the mandatory minimum of 18 U.S.C. § 924(c) when he is also subject to a greater mandatory minimum for a different count of conviction charging a different offense?

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The ACCA Saga Continues

The U.S. Supreme Court granted cert today in several interesting new cases.  As I noted here, there has been a great deal of appellate litigation over the past couple years as to what counts as a “violent felony” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act.  The Supreme Court initiated this period of ferment with its 2008 decision in Begay v. United States (see my commentary on Begay here).  The Court will now be returning to the issue in Sykes v. United States (No. 09-11311).  The specific question is whether using a vehicle while fleeing from a law enforcement officer constitutes a “violent felony.”

The other new case that I will have a particular interest in following is Freeman v. United States (No. 09-10245).  The case involves a defendant who pled guilty under Fed. R. Crim. P. 11(c)(1)(C) and thereby agreed to a specific sentence or guidelines range.  The applicable sentencing range was subsequently reduced by the Sentencing Commission.  The question now is whether the plea agreement disqualifies the defendant from taking advantage of the reduced range under 18 U.S.C. § 3582(c)(2).

Armstrong and Judicial Incompetence

Today, I reread United States v. Armstrong, 517 U.S. 456 (1996), in preparation for teaching a class on selective prosecution tomorrow.  I remain unpersuaded by the Court’s analysis.  The defendants, who were indicted in federal court for dealing crack, sought discovery from the government in order to determine whether they and other black defendants were selected for federal prosecution (and hence for the harsh federal mandatory minimums for crack offenses) because of their race.  In support of the motion, they submitted affidavits indicating that all or nearly all federal crack defendants in their district were black, while many crack defendants prosecuted in the local state court system were not black.  The district court judge granted the discovery motion, but the Supreme Court later held that the defendants were not entitled to pursue their selective prosecution claim.

The Court’s analysis seems to be driven by a strong presumption against judges second-guessing prosecutorial charging decisions.   Continue reading “Armstrong and Judicial Incompetence”