Tuesday, November 28, 2006

District Court Must Impose Below-the-Range Sentence If It Finds that Such a Sentence Serves the Ends of Sentencing as Well as a Guidelines Sentence

United States v. Ministro-Tapia, Docket No. 05-5101-cr (2d Cir. Nov. 28, 2006) (Walker, Leval, Raggi): The Parsimony Clause is alive in the Second Circuit! See 18 U.S.C. § 3553(a) ("The district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)]."). Though Mr. Ministro-Tapia loses his appeal challenging his bottom-of-the-Guidelines-range sentence, the Court's opinion represents a great win for criminal defendants generally. (Disclosure: Phil Weinstein of this Office represents Mr. Ministro-Tapia on appeal). While ultimately rejecting the defendant's argument that the district court violated the parsimony command by imposing a Guidelines sentence when a below-the-range sentence would have advanced the ends of sentencing equally well, the Circuit unequivocally rules that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher" one. Op. 10; see also id. (where a Guidelines sentence is "in equipoise with [a] below-the-range sentence," parsimony clause requires imposition of the lower sentence). All practitioners should cite this passage in future sentencing memoranda to district courts.

The Court nonetheless affirms Mr. Ministro-Tapia's sentence because (1) counsel below did not explicitly invoke the parsimony clause at sentencing, seeking instead a "reasonable" sentence below the Guidelines range, Op. 8-9; and because in any event (2) "[t]he sentencing record, viewed as a whole, does not convincingly demonstrate that the district court in fact viewed the Guidelines sentence that it selected as in equipoise with the below-the-range sentence that the defendant sought." Op. 10 (citing passages in record suggesting that sentencing court did not truly believe that a non-Guidelines sentence was "adequate"). The latter explanation is particularly troublesome, since the district judge herself stated when imposing sentence:

"All in all, I could make an argument for a guidelines sentence. I could make an argument for a nonguideline[s] sentence. And where it's six of one and half dozen of the other, I believe that the best course of action is to come down on the side of the guidelines, and I will impose a guideline[s] sentence."

Op. 7 (emphasis added). Nonetheless, despite the Court's erroneous refusal to apply the parsimony command to the facts of this particular case, this opinion is a clarion call to district courts to impose in each case the lowest sentence necessary to achieve the ends of sentencing.

Thursday, November 16, 2006

Retained Counsel Are Unique, but Appointed Counsel Are Fungible

United States v. Parker, Docket No. 05-6991-cr (2d Cir. Nov. 14, 2006) (Cabranes, Sotomayor, Raggi): This opinion does not break new legal ground, but is nonetheless of interest in highlighting the disparate treatment of defendants who can afford retained counsel and defendants who cannot. The contrast between (1) the Circuit’s easy affirmance here of the district court's unilateral decision on a Crosby remand to replace the defendant’s CJA counsel – who had represented the defendant for well over 3 years by this time – with new CJA counsel, over defendant’s objection, and (2) the Supreme Court’s decision last June in United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006), holding that an erroneous refusal to allow a defendant to proceed with retained counsel of his choice is a structural error requiring automatic reversal of his conviction (i.e., no showing of prejudice is needed), is hard to miss. Our two-tiered system of justice is rarely so visible.

The essential facts are these. In the summer of 2005, Parker appeared before District Judge Arcara for a Crosby remand (to determine whether the Judge would have imposed a different sentence had the Guidelines not been considered mandatory at the original, pre-Booker sentencing). By that time, Mark Mahoney had been Parker’s attorney for well over 3 years. Mahoney was originally retained by Parker, but became appointed counsel under the CJA in April 2002 when Parker lost his income.

Simultaneously, an appeal was pending in the Circuit concerning whether the district judge had erred in not appointing Mahoney as CJA counsel at an earlier time, as he and Parker had requested. The Circuit ultimately affirmed the district court’s decision in United States v. Parker, 439 F.3d 81 (2d Cir. Feb. 21, 2006) (click here for our discussion).

When the Crosby proceeding was before the district court, in sum, Parker and Mahoney’s challenge to the same court’s earlier refusal to appoint Mahoney under the CJA was still pending in the Circuit. Citing the possible appearance of conflict between him and Mahoney, Judge Arcara sua sponte removed Mahoney as Parker’s attorney and appointed new CJA counsel over Parker's objection. Arcara had considered recusing himself to cure the potential conflict, but chose to remove Mahoney instead because of the unique nature of a Crosby remand. Arcara further noted that Parker would suffer no prejudice, since new CJA counsel was an experienced criminal practitioner.

Parker challenges this decision on appeal, and the Circuit easily affirms. It begins by citing Morris v. Slappy, 461 U.S. 1 (1983), for the proposition that "[t]here is no constitutional right to continuity of appointed counsel," and adds that "courts are afforded considerable latitude in their decisions to replace appointed counsel, and may do so where a potential conflict of interest exists . . . and in the interests of justice." Op. 7. The Circuit thus finds no abuse of discretion in Arcara’s decision to remove Mahoney for the Crosby remand, given the adversarial proceeding then-pending between the Judge and Mahoney in the Circuit and the "unique" nature of a Crosby remand. Op. 7-8. And since no one claims that new CJA counsel was ineffective at the Crosby remand, Parker was not prejudiced by the decision to replace Mahoney.

As noted, we quarrel not so much with the Court’s decision in this case (in light of existing law) as with the chasm in the treatment of defendants capable of affording retained counsel versus those unable to do so. If a defendant’s choice of retained counsel is so important as to warrant automatic reversal where erroneously denied, regardless of a showing of prejudice, as the Supreme Court held in Gonzalez-Lopez, we fail to see why the same principle would not at least entail searching scrutiny of a court’s decision to override an indigent defendant’s desire to continue with appointed counsel, especially one who has represented him for so long.

The Court concludes its opinion by emphasizing its "paramount interest in effectively implementing the CJA to ensure that legal services in this Circuit 'will be performed with devotion and vigor so that the lofty ideal -- equality before the law for all persons -- will be achieved." Op. 9 (quoting Second Circuit CJA Plan). But these words ring hollow when one contrasts the outcome here with that in Gonzalez-Lopez. A defendant's right to counsel of choice is sacred if s/he can afford counsel, but meaningless if s/he cannot.

Wednesday, November 15, 2006

In § 846 Conspiracy, Drug Quantity Aggregation Proper to Determine Penalty under § 841(b)

United States v. Pressley, Docket No. 05-2487-cr (L) (2d Cir. Nov. 14, 2006) (Cardamone, Walker, Straub) (per curiam): In United States v. Harrison, 241 F.3d 289 (2d Cir. 2001), the Circuit ruled that where a defendant is convicted of two or more separate substantive counts of drug distribution, in violation of 21 U.S.C. § 841(a), the quantity of drugs distributed in the separate counts may not be aggregated for purposes of determining the proper penalty under the weight-driven graduated scheme of § 841(b). In this case, Pressley was convicted of conspiring to distribute 1 kilogram or more of heroin, in violation of 21 U.S.C. § 846, and thus seemingly subject to the harsh penalties of § 841(b)(1)(A) (mandatory minimum of 10 years and maximum of life imprisonment). He relied on Harrison to argue, however, that he should be punished under § 841(b)(1)(c) (carrying no mandatory minimum penalty and a 20-year maximum) because although the decade-long conspiracy encompassed over 1 kilogram of heroin, no single transaction exceeded this quantity. Rather, the 1-kilo threshold represented the aggregate of thousands of street-level sales of very small quantities.

The Circuit rejects this argument, finding that "[b]ecause a conspiracy is a single, unified offense, it constitutes "a violation" for purposes of § 841(b). Op.5; see Op. 4, quoting 21 U.S.C. § 841(b) ("In the case of a violation of subsection (a) of this section involving. . . 1 kilogram or more ... of heroin ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.") (emphases in Opinion). The Court distinguishes Harrison on this basis. There, each separate substantive drug distribution count constitutes a separate "violation" within the meaning of § 841(b). Here, in contrast, the single conspiracy count is itself the "violation" under § 841(b), a "violation" that "'involves' the aggregate quantity of all the subsidiary transactions attributable to that particular member" of the conspiracy. Op.5.

Thursday, November 02, 2006

Yet Another Courtroom Closure Case

Yung v. Walker, Docket No. 03-3023-pr (2d Cir. Oct. 31, 2006) (Pooler, Sotomayor, Kaplan): This is but the most recent iteration of a long and tedious line of habeas cases in which the petitioner claims that his Sixth Amendment public trial right was violated when the New York state trial judge, at the prosecutor's request, closed the courtroom during the testimony of an undercover police officer at petitioner's trial for drug selling. The very sweet District Judge granted Yung's petition, finding that the state failed to offer sufficient justification to support the exclusion of Yung's mother, baby-mother, and "sister-in-law" (what does one call the sister of one's baby-mother?) from the courtroom during the undercover's testimony. The Circuit agrees with this conclusion, but generously remands in order to allow the state trial court to conduct -- 12 years after the original event -- a new hearing to determine whether closure was warranted. Those interested in the whys and hows will have to consult the fascinating opinion themselves. See Op.19-22.