There are lots of issues that can be raised on direct appeal from an original sentencing hearing or trial. Too many than can be established in one blog post. Lawyers who practice in federal courts spend years litigating cases and studying law at the district level and sometimes at the appeal level. This post gets pretty technical, so read on at your own pace (risk).
Direct appeals from criminal cases can bring up evidence that should have been suppressed,1 or other actions that should have been taken legally by the district court but weren’t. For example, take the case of United States v. Fricosu (read up on the case here, here, and here). In this case, the government tried to force the defendant to give up her passwords so they could prosecute her for what was (hopefully) on her encrypted hard drives. The appeals court had to determine if this violated Fricosu’s 5th Amendment protections against self incrimination.
Aside from the many issues that are unique to a case and are argued at the lowest level of courts, there are two main places where Courts of Appeal will rule on sentences and convictions from district-level judges. These handle issues of plain error and abuse of discretion.
Each circuit has their own set of cases that define plain error reviews, but they all tend to revolve around a very easy, common sense definition of “plain error”. If the judge makes an obvious error, then the appeals court will send it back for correction.
A good example of this is if the judge mistakenly sentences a defendant with 4 extra points added to the offense level being sentenced. Depending on where they land on the federal sentencing table, 4 points could mean the difference of 2+ years on a sentence. Say the 4-points was for a gun used in the commission of a crime, when there were no reports or evidence of guns at all. It just got added because somebody made a clerical error.
Once that sentence was pronounced by the district judge, the only place to correct the plainly erroneous sentence would be the appeals court. If a sentence or decision is made in plain error, the matter is, if explained well, a simple correction that is dictated by the appeals court.
Abuse of Discretion
Judges at the district level have pretty wide latitude to make certain decisions. Anything from re-hearing requests, motions for dismissal of indictment are posed to district judges every day and they have to make a decision on whether or not the request has legal merit. Judges, for lack of a better phrase, just use their best judgment. When this decisions go out of bounds in a bold or subtle way, the appeals courts have the job of correcting this.
The definition of these powers are set by the Circuit itself. For the 9th Circuit, they define their abuse of discretion standard this way:
The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”
Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court. United States v. Hinkson
If this sounds confusing, it usually is. However, the basis of the standard is simple. If the law allows for certain things at the judge’s discretion, anything outside of those certain things is abuse of discretion. If a district judge abuses his/her discretion on a simple matter, it can call into question the entire conviction. These arguments can be very nuanced, but can have very large impacts on the outcome of appeals.
That’s it for now, as a deeper discussion of abuse of discretion vs. plain error would get very VERY technical and boring. As if it weren’t already.
Such as evidence gathered from an unlawful warrant, or testimony from an unreliable source [↩]
For all questions and issues concerning the recent Supreme Court decision in Sessions v. Dimaya, and how that could reduce sentences for current federal inmates who have otherwise exceeded their 1-year window, please click here.
This is a very big question to answer, but the question that needs to be answered first is, “Can and should I file a Title 28 U.S.C. §2255 Motion?”
Again, this is a big question, but it is just as important as how to file. A motion of this type is sort of an appeal, without being a direct appeal. It is a collateral attack on the sentence of incarceration itself for constitutional issues.
First, only federal inmates can file one. The normal course of criminal cases in the federal criminal system is a direct appeal. Second, when the direct appeal didn’t work, was never filed, doesn’t have the ability to work, or simply doesn’t meet the needs of the defendant, a §2255 is the way to go.
In order to be eligible and qualified to file one of these types of appeals, a few criteria need to be met:
Only federal inmates may file;
Complaints cannot be made if they could have been made on direct appeal;
Complaints must be an attack on the sentence itself, not issues related to confinement (such as RDAP acceptance, placement in halfway house, or holdings in Solitary/SHU);
To answer any questions you have about how to file a 2255 motion, give us a call for a free initial consultation: (480) 382-9287
Issues for Direct Appeal
For direct appeals, there are a number of issues that can be brought up. This should be discussed first, before a discussion of the issues that can be raised on 2255 filings. It’s a good way to separate the two.
For a direct appeal there are many issues that can generate a successfully filed appeal. For starters, if a sentencing judge misapplies the guidelines manual by adding or subtracting points for issues not stipulated in a plea agreement, a direct appeal is the way to go. Second, if the prosecution has withheld exonerating evidence, a direct appeal is the way to go.
Basically, mistakes in the administration of justice during an original sentencing or trial are the only issues that have merit on direct appeal. As long as the defense attorney did their job well during the original criminal penalty phase, this is usually sufficient.
IMPORTANT: Issues on direct appeal must have been raised at the district level already, but decided wrong. Appeals courts will not listen to new arguments, only ones that have been already raised at the court below them.
Issues for §2255 Motions
It is a sad fact that most federal criminal defendants cannot afford to hire adequate legal representation for themselves when charged with a federal crime. A vast majority of federal defendants are assigned a public federal defender to represent them.
Federal defenders are a amazing at their jobs, usually. However, they also have a case-load that is MUCH larger than privately hired lawyers and will often make errors or be ineffective because of it. It cannot be stressed enough that great lawyers can make big mistakes when they are overworked, and no lawyer is more overworked than a federal public defender.
With that out of the way, one of the triggers that is most often used for the basis of §2255 filings is the ineffective assistance of counsel.
**A Good Example**
One client we had in early 2017 was eligible and appropriate for a reduction in offense level points because he was a small pawn in a large criminal fraud conspiracy. A “minor role” adjustment is ready and available in the Sentencing Guidelines Manual for defendants just like him. Unfortunately, this adjustment is applied very sparingly in some districts, and liberally in others.
Our client’s lawyer did not mention or fight for this adjustment, which would have been totally appropriate and would have shaved a year or two off of his sentence. So here is where a 2255 works well, and for the following reasons:
The client’s lawyer failed to argue for this adjustment at original sentence, and was therefore ineffective;
The sixth amendment in the Bill of Rights guarantees effective counsel, so this issues is a constitutional one, meaning a §2255 is the right course to take;
The issue could not be brought up on direct appeal because it was not raised at the original sentencing hearing; and,
The issue is timely because, last year, the Sentencing Commission recognized that this adjustment was being applied unevenly between the districts and issued a clarifying amendment to encourage a more even application, triggering a “new evidence” type of claim for our client.
There are far too many issues that could trigger a §2255 to be successfully argued and accepted by the district court of sentencing, so we won’t make a big list here. However, know that anything from a sentence that goes above the statutory maximum allowed by law, or issues that should have been raised during the original prosecution by the defense counsel, but was not, are all covered under the §2255 umbrella.
To answer any questions you have about issues that can trigger a successful 2255 motion, give us a call for a free initial consultation: (480) 382-9287
How We Work
PCR Consultants is a document preparation company. We prepare solid documents that our clients can use to file for all sorts of relief in the federal criminal justice system. Anything from §2255 Motions to Requests for Early Release from Probation.
We aren’t lawyers, and we are not a law firm. That means we don’t represent our clients in court, and cannot file for them. What we do is write killer documents that will make the defendant HEARD by the district court, and include with them an application for the appointment of defense counsel.
Inmates are not guaranteed free defense attorney’s as a right during the process of a §2255, this is to protect the federal defender’s office from being inundated with work in this area. Most of these motions that are filed have little to no merit, or are dismissed for various reasons (such as the ability to raise the issue on direct appeal or no standing to argue new constitutional law in a habeas proceeding).
However, once a judge grants an evidentiary hearing on a §2255 that is found to have merit, appointment of counsel is mandatory (according to Federal Rules Governing §2255 Procedure 8(c)). Our service comes as a package deal, we write:
The originating motion, supplemented with the district’s own forms (if required);
A motion for an evidentiary hearing if the judge finds merit in the request;
(Optional) A motion to proceed as indigent (In Forma Pauperis); and,
A motion for the appointment counsel if the motion for evidentiary hearing is granted.
To answer any questions you have about how we work with clients to write a 2255 motion, give us a call for a free initial consultation: (480) 382-9287
What Happens After the Motion is Filed
After the documents are filed, we’re hands-off. Once they are filed, a chain of events will occur. It starts with the original sentencing judge, who will examine the motion for it’s merits and either dismiss the motion or order the government to file a response.
After the government responds, the defendant might want to file a rebuttal to the government’s arguments. This might be allowed under local criminal rules, or it might not. If not, the rebuttal must be submitted before the Court orders or it won’t be considered at all. Alternatively, the defendant can file a motion for leave to reply, which will give him/her more time to formulate a response.
Now is the time the judge will either grant or deny the defendant and the relief they’re seeking. In cases where facts are in dispute, the Court can grant an evidentiary hearing where, as was discussed earlier, a judge is required to appoint counsel for defendants who cannot afford one of their own.
Unlike direct appeals, which are required to be filed within 14 days (usually) after the pronouncement of a sentence, a §2255 Motion can be filed within a 1 year time period. That is, the defendant/inmate has to file this motion within one year of the latest of four events:
The date of final judgment;
The date any removal of obstacles to filing the motion by government action in violation of the constitution were removed;
The date where the Supreme Court rules on a case which triggers an applicable argument to the defendant/inmate;
The date where supporting facts could have been discovered through research.For clarification, in #1 above, a judgment becomes final when it is pronounced or when any direct appeal to that judgment was denied. So if the Supreme Court refuses to hear an appeal, then the date of final judgment is the date that the Supreme Court petition for hearing is denied.
To answer any questions you have about how court procedures work after filing a 2255 motion, give us a call for a free initial consultation: (480) 382-9287
Defendants only get one shot at filing a §2255, except in rare cases where new evidence is found, or the Supreme Court makes a startling ruling that changes the process of similar cases. Many, many inmates get help from other inmates they are incarcerated with to file a motion like this. Some are very good, but most times this is a total waste of the one shot a defendant gets at filing a motion like this.
That makes the build and execution of this filing the most important part of the process. A motion down the line can be argued, can be re-written and re-submitted, but a summary dismissal due to a bad first filing can’t be easily remedied. Having help in this important process can make the difference between success and failure.
Over 95% of federal defendants plead guilty, according the the Bureau of Justice Statistics. Because of Bill Otis, Law Professor and contributor to Crime and Consequences, most plea agreements now come with appeal waivers: a waiver of the defendant’s right to appeal.
On the surface, at least to this blogger, the waiver of appeal would bar any appeal of conviction and sentence (except for maybe the habeas writ from 18 U.S.C. §2255). What about the imposed terms or conditions of Supervised Release? Are you barred from appealing or moving to change these?
This is one of those times that it really matters where you are convicted.
Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn’t bar a defendant from appealing if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” there were no altered guidelines for supervised release in Scallon’s case.
Signing a plea agreement and waiver of appeal may get your client out of jail faster — or help him avoid jail altogether — but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that “waiver of appeal” is more than just terminology; in the Fifth Circuit Court of Appeals, it’s binding on both the sentence and the supervised release terms.
When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.
A lot of the defendants don’t think that “waiving appeal” means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn’t work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.
So there it is, a circuit split that helps some but not others. If you’re surprised at the 5th Circuit’s conservative reading of appeal waivers, then you must be new to the game. Anybody willing to take bets on the 9th?
2/23/12 – As we previously discussed in this post, the government wants to force the defendant in the above-titled case to turn over an unencrypted hard drive that may or may not have incriminating evidence in it. The district judge granted the governments motion to force the defendant to supply the hard drive. This decision was appealed to the 10th Circuit Court of Appeals, who refused to rule.
Note:Demanding an actual password violates the 5th Amendment protections. The presiding judge in Colorado side-stepped this issue by not requiring Fricosu to give up her password but, instead, requiring her to produce the decrypted hard drive by using her password.
Because the appeals court chose to let the case run its course in the lower court before allowing the issue here to be raised on appeal, the ruling stands and Fricosu has until Monday to turn over the unencrypted version (read: a copy) of her laptop hard drive.
This case has frightening implications on the 5th Amendment to the U.S. Constitution. The process will get rocky. Fricosu can refuse to produce the hard drive1 and face contempt charges,2, or she can comply and face conviction if the incriminating material that the prosecution believes is on the hard drive is actually there.
If she complies and is convicted3, only then can she appeal her conviction to the 10th Circuit Court of Appeals to challenge the order to produce the hard drive that directly led to her conviction.
Updates will be posted as they come in!
If she is able to. Her defense attorney says she may not have the capabilities to even comply with the order [↩]
In a Fourth Circuit Court of Appeals concurring opinion, Judge Davis wrote what many judges, including the sentencing judge in the district court below in this case, have expressed about the mandates for sentencing incumbent in the “War on Drugs”.
It is said so well in Judge Davis’ concurring opinion that I will simply get out of his way and post an excerpt below. The entire opinion is a good read if you are interested in federal sentencing policy-insanity.
The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond…
[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.
Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).
This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit. Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison….
The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure…. Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful … the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.
I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.