Resentencing hearings: evidence of post-sentencing rehabilitation may be considered and this may support a downward variance from the Sentencing Guidelines.

Pepper v. United States 131 S. Ct. 1229 (2011).

Decided March 2, 2011 Supreme Court of the United States

Issue: Whether a district court is entitled to consider evidence of a defendant’s post-sentencing rehabilitation at a resentencing hearing and whether such evidence was a factor to consider in granting a downward variance from the Guideline range.

Holding: In situations where a defendant’s sentence has been set aside and referred for resentencing, a district court on resentencing may consider evidence of post-sentencing rehabilitation and such evidence may support a downward variance from the Sentencing Guidelines range. The “law of the case” doctrine does not require the resentencing court to apply the same percentage departure from the Guidelines range as had been applied at the defendant’s prior sentencing.

Facts: In 2003, petitioner Pepper pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. s846. At trial the Government moved for a 15% downward departure from the Sentencing Guidelines based on Pepper’s substantial assistance. Pepper actually received a 24 month sentence plus five years supervised release – i.e. a 75% departure from the lower end of the range. The Government appealed. At re-sentencing in 2006 (while Pepper was serving his term of supervised release), Pepper recounted having undergone successful drug rehabilitation to the extent that he was now clean. He had also enrolled at community college and was working part time. The District Court granted a 40% downward departure from the bottom of the Guideline range and granted a further 59% variance based on his rehabilitation since initial sentencing. His sentence was therefore reduced to 24 months with the Judge commenting to the effect that to send the defendant back to prison would serve no practical purpose.

A further appeal from the Government followed. The Eighth Circuit resentenced Pepper to a 65-month prison term – stating that it was inappropriate to consider post-sentencing rehabilitation in granting a downward variance from the advisory guidelines. The US Supreme Court reversed this.

Legal Analysis: The court was keen to underline the importance of judicial discretion in sentencing. Giving the lead opinion, Justice Sotomayor noted that the Supreme Court had adopted a generally consistent approach in recognizing that trial judges ought to be afforded wide discretion – including “the fullest information possible concerning the defendant’s life and characteristics”. The earlier US Supreme Court case of United States v. Booker had already determined that the Sentencing Guidelines are advisory (although the test of reasonableness will always be applied to any decision – and particular scrutiny will be applied where there is a marked departure from the (now advisory) Guidelines).

The Court was not of the opinion that Congress intended to preclude consideration of post-conviction rehabilitation when a district court conducts a resentencing hearing after an appeal. In particular, the Sentencing Reform Act in which the Sentencing Guidelines were introduced, makes no distinction between sentencing and resentencing in so far as the factors a court ought to take into consideration are concerned. What’s more, given that the earlier decision of Booker had ruled that the Sentencing Guidelines were advisory, if the Supreme Court was then to tie the hands of district courts and preclude them from considering post-sentencing rehabilitation, this would in practical terms have the effect of confining courts to those Guidelines in a way which is likely to be contrary not just to Booker but also to a defendant’s Sixth Amendment rights.

Plea agreements and subsequent eligibility for reduced sentences: defendants may be eligible to a reduced sentence following retroactive revision of the Sentencing Guidelines – despite the existence of a plea agreement

Freeman v. United States 131 S. Ct. 2685 (2011).

Decided June 23, 2011 Supreme Court of the United States

Issue: Whether a defendant is eligible to a sentence reduction under 18 U.S.C. s3582 (c) (2) (which generally permits a defendant to move for a sentence reduction following a lowering of the sentencing range for the offense in question where the reduction has been specified to apply retroactively); despite the fact that the defendant had, at the time of his original trial, entered into a Federal Rule of Criminal Procedure 11 (c) (1) (C) agreement (in which the parties agree that a specific sentence or sentencing range is appropriate and which subsequently binds the court once accepted by the judge).

Holding: The majority held that the defendant’s original sentence was based on the Sentencing Guidelines. Defendants who enter into plea agreements recommending a particular sentence as a condition of the guilty plea may be eligible to apply for a reduced sentence in the event of a subsequent modification to the sentencing range.

Facts: Petitioner Freeman was indicted in 2005 for various crimes – including possessing with intent to supply cocaine base – 21 U.S.C. ss 841 (a)(1); (b)(1)(C). Under a Category C plea agreement he agreed to plead guilty to all charges. Crucially the agreement stated that “both parties have independently reviewed the Sentencing Guidelines applicable in this case” and that “a sentence of 106 months’ incarceration is the appropriate disposition of this case”. Furthermore the agreement stipulated that the defendant “agrees to have his sentence determined pursuant to the Sentencing Guidelines”. This was a 106 month sentence which reflected the parties’ expectation that the appropriate range for the cocaine base-related offense would be 46 to 57 months (in addition to a 60 month mandatory minimum for possessing a firearm in furtherance of a drug-trafficking crime). The sentence was therefore at the bottom of the applicable range.

Three years later, the Sentencing Commission issued a retroactive amendment to reduce the sentencing range for cocaine base offenses. The applicable range for Freeman’s cocaine base offense was therefore 37 to 46 months (on top of the 60 months mandatory minimum for the drug and firearm offense). Freeman’s subsequent application for a reduction was refused. The Court of Appeals affirmed on the basis that a sentence agreed on the basis of a plea agreement was binding except in cases of miscarriage of justice or mutual mistake. The US Supreme Court reversed this.

Legal analysis: Between the five Justices who agreed that the petitioner ought to be entitled to relief, there was a split as to the reasons why.

18 USC s3582 c 2 permits a sentence to be reduced following a retrospective amendment of the Sentencing Guidelines if the original sentence was “based on” the earlier guidelines. When considering whether to accept the recommended sentence within a plea agreement, the trial judge must nevertheless be satisfied that the sentence is appropriate. The Sentencing Guidelines specifically state that when doing this, he must give due consideration to the appropriate sentencing range. For this reason, Justice Kennedy giving the majority opinion, took the view that the original sentence was indeed “based on” the earlier Guidelines and that therefore the petitioner was eligible to have his sentence reviewed.

Justice Sotomayer’s approach was different. She took the view that where a plea agreement is entered into, the sentence ought properly be regarded as being “based on” the agreement rather than the Guidelines. However, because (as in Freeman’s situation) the prison term has been agreed with express reference to the range in the Guidelines, the sentence can be quite properly  regarded as being based upon those Guidelines and the defendant ought still be entitled to a review.

The term ‘cocaine base’ under the Anti-Drug Abuse Act of 1986 (ADAA) refers to all forms of cocaine base – not just “crack cocaine”.

DePierre v. United States 131 S. Ct. 2225 (2011).

Decided June 9, 2011 Supreme Court of the United States

Issue: The Anti-Drug Abuse Act of 1986 Provides for a mandatory 10-year minimum sentence for certain drug offenses involving “(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of (ii)cocaine , its salts … [or] (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base”. 21 U.S.C. s841 b 1 A.  The petitioner DePierre argued that the jury ought to be instructed that in order to find him guilty of distribution of “cocaine base”, it must find that his offense involved crack cocaine. The issue was whether, taken in context, the term “cocaine base” was intended by Congress to refer to crack cocaine only or whether it referred more broadly to cocaine in its chemically basic form.

Holding: Affirming the District Court and First Circuit Decisions, “cocaine base” as used in s841 (b) (1) is not limited to crack cocaine and applies to all forms of cocaine base.

Facts: After selling two bags of drugs (weighing 55.1 grams) to a Government informant in April 2005, petitioner DePierre was indicted on a charge of distributing 50 grams or more of cocaine base under ss 841 (a) (1) and (b) (1) A (iii). At trial, the People adduced scientific evidence that the substance was cocaine base although given that no sodium bicarbonate was identified, it was not possible to show that this was crack cocaine. DePierre referred to a set of amended Sentencing Guidelines – (issued in 1993 and therefore postdating ADAA) which gave a definition: “cocaine base for the purposes of this guideline, means crack…”. ADAA had left the term ‘cocaine base’ undefined. DePierre’s proposed jury instruction at his trial gave the same definition of ‘cocaine base’ as these Guidelines. His proposed jury instruction was rejected in favor of the all-encompassing, literal reading of “cocaine base”. The US Supreme Court essentially affirmed the decision of the trial judge and the Court of Appeals Majority decision.

Legal analysis: the four key arguments of the petitioner were rejected by Justice Sotomayor in the opinion. One argument was that Congress, at the time the Statute was passed, obviously had crack cocaine in mind. The Supreme Court took the view that although public and congressional concern over crack in the mid eighties had instigated the statute, the starting point should always be interpretation of the statutory text – and that text was clearly referring to all forms of cocaine base. There was no reasonable indication that Congress intended to restrict the relevant mandatory sentencing solely to a specific form of cocaine base. An additional argument advanced by DePierre was that it would be absurd to interpret cocaine base as referring to chemically base cocaine as this would mean that an offense involving 5 grams of natural, unprocessed coca leaves would technically give rise to a mandatory 5 year minimum sentence even though the leaves would produce a miniscule amount of cocaine. This was rejected on the basis that in reality a prosecutor would in fact be unable to prove that coca leaves contain “cocaine” in its base form and therefore this hypothetical situation simply would not occur. The Supreme Court also rejected the argument that it should give due deference to the 1993 Sentencing Guidelines Amendment when interpreting the earlier statute. It had been well established that such deference was not appropriate when considering statute. The petitioner’s final argument was that the degree of ambiguity over interpretation of the statute was such that the rule of lenity required it to be interpreted in his favor. The situation so far as the Supreme Court was concerned was clear. There was no ambiguity over the wording of the relevant statue to warrant the rule of lenity being applied here. 

The question of whether an offense is a “serious drug offense” for the purposes of the Armed Career Criminal Act, should be determined with reference to the maximum term of imprisonment applicable at the time of conviction

McNeill v. United States 131 S. Ct. 2218 (2011).

Decided June 6, 2011 Supreme Court of the United States

Issue: ACCA stipulates that a felon unlawfully in possession of a firearm is subject to a 15-year minimum sentence if he has three prior convictions for a “violent felony or serious drug offense”. A serious drug offense is defined as one “for which the maximum term of imprisonment of ten years or more is prescribed by law,” (s924 (e) (2) (A) (ii).) The issue was whether a prior offense in respect of which the maximum sentence was formerly ten years ought still be regarded as a “serious offense” where the maximum term has since been reduced to less than ten years.

Holding: Held unanimously, the question as to whether an offense under State law is a “serious drug offense” is calculated with reference to the “maximum term of imprisonment” at the time of the defendant’s conviction of that offense.

Facts: In 2008 petitioner McNeill pleaded guilty to unlawful possession of a firearm by a felon, 18 U.S.C. s922(g) (1) and possession with intent to distribute cocaine base 21 U.S.C. s841(a)(1). In respect of the firearm offense, the North Carolina District Court sought to apply a 15 year minimum prison sentence under the Armed Career Criminal Act on the basis that he had two convictions for “violent felonies” and one conviction for a “serious drug offense”. McNeill did not dispute that two of the prior convictions – namely assault with a deadly weapon and robbery were “violent felonies”. He did however argue that none of his six state drug trafficking convictions were for “serious drug offenses”.  When he had been convicted of them, the maximum sentence was 10 years (the sentence that he did in fact receive). In October 1994, after McNeill’s conviction, North Carolina reduced the maximums to 38 months for selling cocaine and 30 months for possession with intent to supply.

At his 2008 trial, McNeill argued that the prior drugs offenses should not be regarded as serious drugs offenses because they no longer carry 10 year maximum sentences. The District Court refused to look at current state sentencing law and concluded that the offenses should be regarded as serious drugs offenses because of the maximum sentence they carried at the time of conviction. The Court of Appeals and subsequently the Supreme Court affirmed.

Legal analysis: With Justice Clarence Thomas giving the opinion on what was a unanimous decision, the Court firstly considered the wording of the relevant statutory provision. A serious drug offense is one “for which a maximum term of imprisonment of ten years or more is prescribed by law”. The Court rejected the petitioner’s argument that the use of the present tense in the phrase; “is prescribed by law” suggests that the current applicable maximum should be considered. On basic reading of the statute, it requires a court to determine whether a previous conviction was a serious drug conviction; and therefore it is a “backward-looking question”. A district court ought not to be concerned with the current treatment of the offense so far as sentencing is concerned, but rather on what the position was at the time of conviction. To do otherwise could give rise to unsatisfactory results; e.g. in those situations where a state revised its definition of an offense so that technically (if it were to be considered from the ‘present tense’ perspective as McNeill argued) it could potentially be regarded as no longer “existing”.

The erroneous exclusion of relevant evidence will not necessarily lead to a conviction being overturned on appeal.

The People v. Spencer 2101 N Y Slip Op 08567

Decided: December 13 2012 New York Court of Appeals

Issue: Whether the improper preclusion of evidence adduced by the Defendant which was wrongly assessed as “collateral”, ought to give grounds for the original conviction and sentence being overturned.

Holding: On the facts, no. The trial judge was wrong to categorize the evidence in question as collateral but nevertheless, the weight of evidence against the Defendant was such that the error was “harmless beyond a reasonable doubt”. 

Facts: Defendant was charged with one count of criminal possession of a weapon in the second degree and other related charges. Witnesses testified that Defendant had been involved in a street level altercation with a third party on the evening in question. Shortly afterwards, the Complainant, an off-duty police officer arrived at the scene. Complainant and other witnesses gave evidence that the Defendant assaulted the Complainant and brandished a firearm. The evidence upon which the Defendant wished to rely was his own testimony to the effect that the third party and the Police Officer Complainant were close friends and that the Complainant permitted the third party to deal drugs directly outside his home. This evidence was precluded by Supreme Court on the basis it was “collateral”. The Court of Appeals gave the opinion that this categorization was incorrect and the Defendant ought to have had the opportunity to rely on it. Given the weight of other evidence against the Defendant however, the original conviction of second-degree criminal possession of a weapon and 15 year sentence was upheld.

Analysis: The case illustrates how an irregularity or omission will not necessarily give rise to a conviction being overturned. Even taking into account the principle that “trial courts have broad discretion to keep the proceeding within manageable limits and to curtail the exploration of collateral matters” (People v Hudy 73 NY2d 40, 56 [1988]), it was nevertheless the case that the evidence in question – (i.e. relating to the Complainant’s alleged connection with the third party) could rightly be categorized as “tending to establish a reason to fabricate” and ought not to have been regarded as collateral. After all, a defendant has the constitutional right “to present a complete defense” California v Trombetta 467 US [1984]. Despite this, the strength of the evidence against the Defendant (notably eyewitness testimony and 911 calls) was such that essentially the wrongful preclusion of this evidence would not have made any difference to the outcome. The lack of material prejudice to the Defendant meant that the conviction was not overturned. 

Where a court imposes a new sentence based on an amended Sentencing Guideline, any reduction in the sentence must be within the amended Guideline range.

Dillon v. United States 130 S. Ct. 2683

Decided: June 17 2010 Supreme Court of the United States

Issue: In 2007, the Sentencing Commission amended the Sentencing Guidelines to reduce by two levels, the base offense level associated with crack cocaine. After this amendment was made retrospective in 2008, the petitioner moved to have his original 1993 sentence for various drugs-related offenses reduced under 18 U.S.C. s3582(c) (2) which authorizes a district court to reduce an otherwise final sentence pursuant to a Guidelines amendment. The issue was whether, in light of the decision in United States v. Booker, 125 S.Ct. (2005) and in order to preserve the defendant’s right to jury trial, the District Court was entitled to exercise discretion and  impose a sentence below the Guideline range.

Holding: Booker does not apply to proceedings to modify an otherwise final sentence following an amendment to the Sentencing Guidelines. A defendant’s right to jury trial under the Sixth Amendment is not violated by the requirement that a district court considers a reduction only within the range of those amended Guidelines.

Facts: In 1993 a jury convicted Dillon of conspiracy to distribute and to possess with the intent to distribute more than 500 grams of powder cocaine and more than 50 grams of crack cocaine and intent to distribute more than 500 grams of powder cocaine. On sentencing, his total offense level was 38 which, taken in conjunction with his criminal history, meant that he was faced with a then mandatory Guideline range of 262-to-327 months imprisonment. He was sentenced at the bottom end of the Guideline which meant that in light of a further mandatory minimum sentence of 60 months for a linked firearm offense, his total sentence was for 322 months. The court described the sentence as “entirely too high for the crime that [Dillon] committed” but perceived no basis for a reduction below what were then mandatory Guidelines.

Following the amendment to the Guidelines, Dillon moved for a reduction in his sentence. He further contended that a reduction to a sentence lower than the minimum within the amended Guidelines was warranted in his case. He argued that in light of Booker, the court was entitled to exercise discretion and in effect treat the Guidelines as advisory. The District Court reduced Dillon’s sentence to 270 months (i.e. to the bottom of the amended Guideline range) but declined to make a further reduction, finding that the sentencing proceedings in question – i.e. a motion for a sentence reduction under s3582 (c) (2) are readily distinguishable from the sentencing proceedings in Booker (which concerned the imposition of an enhanced sentence beyond the standard range). The Court held that it lacked the authority to impose a sentence inconsistent with the amended Guidelines. The Third Circuit affirmed, noting that the Sentencing Guidelines policy statement (U.S.S.G.1B1.10) is clear that any reduction to a term less than the minimum guideline range ought not to be considered. The Third Circuit affirmed, regarding this policy guideline to be binding.

The Supreme Court also rejected the Defendant’s submissions. Booker does not enable the amended Guidelines to be treated as advisory. Sentence modification proceedings based on retroactive amendment to the Sentencing Guidelines are not the same as “resentencing proceedings”. They are merely a means of limited adjustment to what would otherwise have been a final sentence in response to a congressional desire to allow prisoners to benefit from a subsequent adjustment to the Guidelines.

Analysis: The Defendant had argued that the proceedings to reconsider his sentence under 3682 c 2 were, in effect, “resentencing proceedings”. The Supreme Court took the view that this simply wasn’t borne out by the language of the statute. It provides for a reduction “if such a reduction is consistent with” applicable Commission policy statements. Given that the relevant policy statement is also very clear in limiting any reduction only within the scope of the amended Guidelines, the Court took the view that there is little doubt that the congressional drafters of the relevant clauses did not intend or envisage the courts to embark upon a complete resentencing exercise in individual cases. Final sentence has already been passed: Congress is essentially allowing a degree of “lenity to give prisoners the benefit of later enacted adjustments to the judgments reflected in the guidelines”. Certainly, a degree of discretion is required on the part of judges in such proceedings – but only so far as to consider whether and to what extent a reduction would be warranted within the amended Guideline range. Because this was not a resentencing exercise as such, Dillon’s arguments that Booker facilitated the exercise of full discretion outside the Guideline range did not stand.   

Double Jeopardy does not bar a defendant from being retried for an offense on which a jury has previously deadlocked – even where he has been convicted of a related lesser offense under a partial verdict in the first proceedings

The People v. McFadden 2012 N Y Slip Op 08565

Decided: December 13 2012 New York Court of Appeals

Issue: Where a jury has deadlocked on a third degree criminal possession of a controlled substance charge but has delivered a partial verdict, convicting the defendant on an included seventh degree possession charge, can he be retried for the third degree charge?

Holding: Yes. Regardless of the conviction on the lesser charge, the principle of double jeopardy does not apply to the greater charge – (in light of the fact that no verdict has been given on that charge as a consequence of the deadlocked jury). 

Facts: Defendant was indicted for criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree in connection with a single transaction. At the initial trial the jury was not instructed to consider these charges in any particular order. During deliberations, the jury sent a not indicating that a juror was asking to be removed from service. The court asked for a reason and a further note was sent indicating that the juror wanted to be excused due to high blood pressure which she stated was being exacerbated by the pressure of having to reach a verdict beyond reasonable doubt – (the juror stated that she thought her ‘individual rights’ were being violated in being required to try to reach a verdict). Defense counsel moved for a mistrial. The People suggested making further enquiries about the nature of the blood pressure problem but this was rejected by the Court.

The jury stated they had a verdict on the seventh degree possession charge but were deadlocked on the other two counts. Defense counsel requested a mistrial as to counts one and two which the court agreed to. The Jury delivered a guilty verdict on the seventh degree possession charge and was then dismissed. Before the second trial, defense counsel moved to dismiss the third degree criminal possession charge, arguing that a retrial on that count would violate the double jeopardy principle. The motion was denied and the Defendant was subsequently convicted on that charge at the second trial. The Apellate Division dismissed the conviction. The Court of Appeals allowed the People’s subsequent appeal, ruling that the retrial did not breach double jeopardy.

Legal analysis: The Court recognized that where a jury is instructed to consider inclusory concurrent counts in the alternative, a conviction of a lesser offense is deemed an acquittal of the greater counts. In certain circumstances however, a defendant effectively relinquishes that double jeopardy claim. For instance in People v Echevarria 6NY3d 89, 92-93 [2005], the Defendant was charged with two counts of first degree murder and two counts of second degree murder without any direction to the jury as to the order in which the counts should be considered and with no objection from defense counsel. During deliberations, the jury sent out a note indicating that a verdict had been reached on two unspecified counts. The court took a partial verdict convicting the Defendant of the second degree murder charges and the next day also took a guilty verdict in respect of first degree murder.

In McFadden’s case as in Echevarria, counsel had not objected to the failure to give proper direction to the jury as to the order in which the offenses should be considered. Indeed, McFadden’s counsel had requested a mistrial after the court had specifically stated that the defendant faced retrial on the top two counts. The case, People v Fuller 96 NY2d 881, [2001] held that a defendant is not precluded from pursuing a double jeopardy claim because he fails to request that the charges be considered in the alternative but in the present case McFadden had, in effect, “charted his own course” by requesting the mistrial and was therefore deemed unable to claim that his retrial is barred.  

Prior conviction for knowing or intentional flight from a law enforcement officer constitutes a violent crime for the purposes of the Armed Career Criminal Act (ACCA)

Sykes v United States 131 S.Ct. 2267

Decided: December June 9, 2011 United States Supreme Court

Issue: Petitioner Sykes had prior convictions for at least three felonies including the Indiana state-law crime of “using a vehicle” to “knowingly or intentionally flee from a law enforcement officer” after being ordered to stop. On pleading guilty to being a felon in possession of a firearm 18 U.S.C s922 (g) (1), the Federal District Court counted the vehicle flight as one of three prior violent felonies and invoked the 15 year mandatory minimum sentence under the Armed Career Criminal Act (ACCA) 18 USC s924(e). The issue was whether vehicle flight felony was “violent” within the meaning of ACCA. 

Holding: It was deemed to be a “violent” felony for the purposes of ACCA.

Facts: Petitioner Sykes pleaded guilty to being a felon in possession of a firearm in connection with an attempted robbery of two people at gunpoint. Two previous convictions both involved robberies at gunpoint. The third felony was a violation of Indiana’s “resisting law enforcement code” which provided that where a person “flees from a law enforcement officer, after the officer has… identified himself and ordered the person to stop…and the person uses the said vehicle to commit the offense…” the offense is categorized as a Class D felony. The District Court decided that all three convictions were for violent felonies. Sykes was therefore deemed to be subjected to the relevant mandatory 15-year minimum and was sentenced to 188 months of imprisonment. The Court of Appeals affirmed. The US Supreme Court affirmed, ruling that the flight felony was a violent one.   

Legal analysis: In the lead judgment, Justice Kennedy firstly affirmed that the correct approach to take when considering whether a particular crime is a violent felony is a “categorical” one; i.e. to consider whether the elements of the offense would lead to the conclusion that it is a violent one rather than enquiring as to the specific conduct of the particular offender. For a ‘vehicle flight’ to be considered violent under 18 U.S.C. s924 (e) (2) (B), it must be an offense that “otherwise involves conduct that presents a serious risk of physical injury to another”. An analogy was drawn with arson – in which the intentional release of a destructive force poses danger to others. Similarly, an act of burglary can foreseeably end in a confrontation leading to violence. A flight from a law enforcement command can lead to collateral consequences with violent and dangerous potential for others – notably the risk of collision. What’s more, once the suspect is apprehended, officers are typically required to draw guns to effect arrest, thus giving rise to further risk of injury to persons. The Supreme Court was therefore of the opinion that a commonsense categorical approach would lead to the conclusion that a vehicle flight is a violent offense. 

A district court cannot give a longer prison sentence than would otherwise have been the case purely to facilitate rehabilitation.

Tapia v United States 131 S.Ct. 2382

Decided: December June 16, 2011 United States Supreme Court

Issue: Petitioner Tapia was convicted of inter alia smuggling unauthorized aliens into the United States. A 51-month prison term was imposed, with the District Court specifically stating that she should serve that long in order to qualify and complete a Residential Drug Abuse Program (RDAP). Issue was whether, as Tapia argued, the lengthening of her term to make her eligible for the RDAP violated 18 U.S.C s3582(a) according to which, sentencing courts are required to “recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation”.

Holding: The Sentencing Reform Act 18 U.S.C. §3582(a) does not permit a sentencing court to give a longer sentence in order to foster a defendant’s rehabilitation.

Facts: At her sentencing hearing, the District Court determined that a recommended prison term of between 41 and 51 months applied (with reference to the Sentencing Guidelines). In passing a sentence of 51 months, the District Judge stipulated that he was doing so primarily to ensure she served a sentence long enough to be eligible for and to complete a drug program. On appeal, Tapia argued that the District Court had erred in lengthening the prison term to make her eligible for the program in light of 18 U.S.C. s3582. The Court of Appeals disagreed; stating that whilst a sentencing court cannot impose a prison term to assist a defendant’s rehabilitation, nevertheless a court may consider the defendant’s rehabilitation needs in determining the length of that sentence. In reversing that decision, the U.S. Supreme Court noted that in fact s3582 is clear in its rejection of the notion of prison as a vehicle for rehabilitation to the effect that the statute can be quite properly said to preclude federal courts from either imposing a prison term or indeed imposing a term longer than would otherwise be the case solely to promote a defendant’s rehabilitation.

Legal analysis: The Supreme Court considered the background of the relationship between sentencing and rehabilitation. Whereas at one time indeterminate sentencing was the norm and enabled judges to make decisions based upon their own assessments of an offender’s amenability to rehabilitation, this approach was now clearly rejected. Much of the decision was taken up with interpretation of the provision U.S.C. s3582(a) which instructs courts to “recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation”. The Court rejected the idea that the word ‘recognize’ should not be seen as a blanket prohibition. Taking the word’s dictionary meaning, ‘to perceive clearly’, the Court was of the view that if a judge were to perceive clearly that prison is not suitable for rehabilitation, it would follow that a sentence of imprisonment ought not to be given or extended for rehabilitation purposes. Furthermore, the Court took the view that if Congress had intended courts to base prison terms on a prisoner’s needs, it is reasonable to assume that courts would also have been given the capacity to ensure that offenders participate in correctional programs. The text of the statute as well as the wider background informed the Supreme Court’s decision on this point.

]]> http://www.newyorkappellatelawyer.com/sentencing-reform-act-judge-cannot-lengthen-sentence-to-promote-rehabilitation/feed/ 0 http://www.newyorkappellatelawyer.com/trial-court-may-enhance-federal-sentence-even-where-enhancement-omitted-from-indictment/ http://www.newyorkappellatelawyer.com/trial-court-may-enhance-federal-sentence-even-where-enhancement-omitted-from-indictment/#comments Mon, 25 Mar 2013 16:43:44 +0000 Stephen N. Preziosi http://www.newyorkappellatelawyer.com/?p=1593 Continue reading →]]> United States v. Cotton

Indictment errors: failure to include within the indictment a fact that enhances the statutory maximum sentence does not in itself justify an appellate court vacating the enhanced sentence.

United States v. Cotton 122 S.Ct.1781

Decided: May 20 2002 Supreme Court of the United States

Issue: Whether the omission from a federal indictment of a fact that serves to enhance the statutory maximum sentence justifies an appellate court vacating the enhanced sentence – even where the defendant did not object to the omission at the trial court.

Holding: On the facts, the omission did not seriously affect “fairness, integrity or public reputation of judicial proceedings”. Whilst the indictment was defective, this does not in itself deprive a court of jurisdiction and even though the omission was erroneous, it did not amount to a ‘plain error’ requiring the setting aside of the enhanced sentence.

Facts: One of the respondents was the leader of a ‘vast drug organization’ in Baltimore and a further six respondents had lesser roles within that organization. The original indictment from October 1997 charged the respondents with conspiring to distribute and possess with intent to distribute, 5 kilograms or more of cocaine and 50 grams or more of cocaine base, which, in accordance with 21 U.S.C. ss846 and 841 would give rise to a term of imprisonment of “not… more than life”. In March 1998 a superseding indictment was returned  – adding five more defendants, but this time the charges were for a “detectable amount” of cocaine; for which a statutory maximum of “not more than twenty years” would apply.

At trial, the defendants were found guilty under the superseding indictment – after the District Court had instructed the jury that “as long as you find that a defendant conspired to distribute or possess with intent to distribute these controlled substances, the amounts involved are not important”. At sentencing, the District Court then made a finding of a drug quantity which would give rise to the enhanced sentence – i.e. up to a maximum of life imprisonment. Crucially, the defendants had not objected in the District Court to the fact that the sentences were based on a quantity of drugs not alleged in the indictment.

Meanwhile, as the respondents were awaiting their appeal, the Supreme Court ruled in the matter of Apprendi v. New Jersey 530 US 466 that other than the existence of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be proven in front of a jury, beyond reasonable doubt. The respondents then argued that because the drug quantity issue was neither alleged in the indictment nor submitted to the jury, the sentences were invalid.

The Supreme Court reversed a Court of Appeals decision and ruled that the original sentence should stand. The evidence implicating the respondents in the conspiracy showed an involvement with far more than 50 grams of cocaine base; (for example the arrests made in connection with the investigation had included the seizure of numerous bags containing a total of 380 grams of cocaine base). The Supreme Court ruled that a defective indictment does not deprive a court of jurisdiction and neither does the omission from a federal indictment of a fact that enhances the statutory minimum sentence justify a court of appeals vacating that sentence.

Legal analysis: The respondents had referred to the case of Ex parte Bain 121 US 1, (1887) to assert that the omission from the indictment was a jurisdictional defect requiring that the sentence be vacated. The Court noted that during the era in which that case was decided, there was no direct right of review of a criminal conviction to the Supreme Court unless the error was “jurisdictional”. What we mean by ‘jurisdictional’ has gradually change so now it refers to a court’s ‘statutory or constitutional power to adjudicate a case’ whereas previously it was interpreted very widely to the extent that small, technical defects would deprive a court of it’s jurisdiction – in effect to counteract the fact that a jurisdictional challenge was one of the few routes to an appeal.  The Supreme Court ruled that Baines was overturned in so far as it meant that a defective indictment deprives a court of jurisdiction.

The fact that an error had occurred when the second indictment was issued was admitted by the Government. However even if it was accepted that this error affected the respondents’ substantive rights, the respondents could have applied for this to have been rectified at District Court level. Most importantly though, the weight of evidence pointing to the involvement of the respondents with very large quantities of cocaine would render it inconceivable that a jury, once a guilty verdict on the conspiracy charges had been reached, would have failed to have reached the conclusion that the requirements for an “enhanced” sentence were not met.

]]> http://www.newyorkappellatelawyer.com/trial-court-may-enhance-federal-sentence-even-where-enhancement-omitted-from-indictment/feed/ 0