News You Can Use: SCOTUS upholds separate sovereigns doctrine in Gamble v. United States

 

This week, in Gamble v United States, the Supreme Court reaffirmed the “longstanding interpretation” of the double jeopardy clause that prosecution of the same crime by separate sovereigns does not violate the Fifth Amendment. The Court was split 7-2.

The Facts

The cops pulled over Terance Gamble for a faulty headlight. A police officer smelled marijuana and searched Gamble’s car, where he found two bags of marijuana, a digital scale and a handgun.

Gamble pleaded guilty to being a felon in possession of a firearm in Alabama state court, and then federal prosecutors indicted him for the same instance of possession in federal court under 18 U.S.C. §922(g)(1). Gamble moved to dismiss on one ground: his federal prosecution for the gun charge violated the double jeopardy clause. The trial court rejected his claim, explaining that it had to follow the separate sovereigns doctrine unless and until the Supreme Court overruled it. The Eleventh Circuit affirmed.

The Opinion (and the notable dissents)

Justice Samuel Alito wrote the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh. The basic conclusion in the Alito opinion is that, “where there are two sovereigns . . . there are two laws,” and therefore two offenses. Accordingly, prosecution by both state and federal authorities for the same crime but under different statutes is not a double jeopardy violation. Gamble’s primary argument was that the Supreme Court’s line of cases on the “separate sovereigns” doctrine conflicts with the understanding of the Founding Fathers who ratified the double jeopardy clause. But Alito concluded that principles of stare decisis could not be undone by mere “ambiguous historical evidence.”

Justices Ruth Bader Ginsburg and Neil Gorsuch each filed their own notable dissents. Justice Ginsburg’s dissent included some pointed criticism of the federal code: “The expansion of federal criminal law has exacerbated the problems created by the separate-sovereigns doctrine. Ill effects of the doctrine might once have been tempered by the limited overlap between federal and state criminal law. In the last half century, however, federal criminal law has been extended pervasively into areas once left to the States.” Ginsburg further noted that the “separate sovereigns” doctrine “has been subject to relentless criticism by members of the bench, bar, and academy,” and thus she would have ruled in Gamble’s favor.

Gorsuch’s dissent echoed many of Ginsburg’s sentiments, but he took specific aim at the majority’s stare decisis reasoning, stating: “stare decisis isn’t supposed to be the art of being methodically ignorant of what everyone knows.” In his view, “blind obedience to stare decisis would leave this Court still abiding grotesque errors,” such as the Supreme Court’s 1857 decision holding that blacks were not citizens and could not bring a lawsuit in U.S. courts or its 1944 decision upholding the internment of Japanese-Americans during World War II. Gorsuch’s dissent also concludes with a heated criticism of governmental power: “governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first—and there is nothing to stop them from being the last.”

Takeaway

  • Your client can still be charged and tried in both state and federal court for the same underlying conduct, and it does not violate double jeopardy.

News You Can Use: Tenth Circuit’s decision in United States v. Aragon – a Narrow Drug Quantity Ruling That Raises Broad Questions

In United States v. Aragon, 922 F.3d 1102 (10th Cir. 2019), the Tenth Circuit issued an interesting but fact-specific holding that the district court clearly erred in determining the applicable drug quantity. At the same time, the opinions in Aragon raised without resolving fundamental questions about the role of the court and counsel in sentencing proceedings.  Read on about the opinion, and be sure to check out the takeaways at the bottom of the post.

 I.           The Drug Quantity Issue

Leonard Aragon pleaded guilty to possessing with intent to distribute controlled substances. The charges were based on two controlled buys in which Mr. Aragon sold a total of 71.9 grams of heroin to a confidential informant. The drug quantity issue arose from additional suspected drugs recovered from Mr. Aragon’s car at the time of his later arrest. The district court found that the suspected drugs amounted to 11 additional grams of heroin and 28.5 grams of methamphetamine. The district court’s findings increased Mr. Aragon’s offense level by 4 and produced a higher guidelines range.

On appeal, Mr. Aragon maintained that the district court clearly erred by determining that the suspected heroin weighed 11 grams and that the suspected methamphetamine weighed 28.5 grams. The record revealed only the “packaged weights” of the suspected drugs, not the “net weights” of the drugs themselves. The district court had attempted to derive the net weights by “deducting half a gram for the packaging” of each package. Slip op. at 7. It was this move that Mr. Aragon attacked as clearly erroneous. Mr. Aragon pointed out there was no evidence about the weight of the packaging and posited that the available photographs made it “impossible to tell” how much of the packaged weight was attributable to the packaging itself. Id. at 14.

 The Tenth Circuit agreed. The Court characterized “the district court’s half-a-gram figure” as “guesswork” and ruled that drug quantity findings cannot be sustained on such a basis. Id. The Tenth Circuit went on to reject a harmless-error defense interposed by the Government. The Government argued that Mr. Aragon’s offense level would have remained the same “even if the packaging of the heroin and methamphetamine found in his car weighed 11 grams each.” Id. at 15. The Tenth Circuit, however, took note of cases in which the weight attributed to drug packaging “was dramatic,” including a prior Tenth Circuit case in which the packaged weight of heroin was 28.2 grams but the net weight was only 3.8 grams. Id. Given that the photographs in the case were ambiguous, the Tenth Circuit found itself unable to conclude that the district court’s error did not affect Mr. Aragon’s offense level. Id. at 16.

The Tenth Circuit vacated Mr. Aragon’s sentence and remanded for resentencing. Id. at 19.

 II.          The Roles of District Courts and Counsel at Sentencing

 Although the Tenth Circuit vacated Mr. Aragon’s sentence on narrow grounds, both the Court’s opinion and a concurrence by Judge Holmes broached broader issues.

 A.          What are the limits on a district court’s authority to act sua sponte at sentencing?

Before ruling in favor of Mr. Aragon on the drug quantity issue, the Tenth Circuit addressed and rejected Mr. Aragon’s argument that the district court had abused its discretion by acting sua sponte at sentencing.

 This issue arose because it was the sentencing judge, not the Government, who elicited the evidence regarding what was found in Mr. Aragon’s car. The parties had signed a plea agreement stating that the appropriate guidelines range was one that did not add levels based on what was found in Mr. Aragon’s car. Id. at 2-4. The Government had agreed with that calculation because, unlike the heroin from the controlled buys, the suspected drugs found in Mr. Aragon’s car were neither field tested nor sent to a laboratory for formal testing. Id. at 6. No such testing was pursued “because Mr. Aragon had quickly indicated his intent to resolve the case, which prompted the government to cease its investigation.” Id. The sentencing judge, however, decided to collect and present its own evidence regarding what was found in Mr. Aragon’s car. The judge directed the Government to provide the court with “all documents and reports relating to Mr. Aragon’s arrest and the discovery of [suspected] drugs in his car,” a police report relating to phone calls that Mr. Aragon had made from jail, and a report regarding the contents of Mr. Aragon’s cell phone. Id. at 4. In addition, the judge directed the Government to “have the case agent present at sentencing.” Id. Over Mr. Aragon’s objection, the district court relied on the evidence that it had gathered to increase Mr. Aragon’s guidelines range.

Mr. Aragon maintained the district court’s sua sponte actions were improper, but the Tenth Circuit disagreed. The Court reaffirmed prior precedent that a district court’s power to gather and elicit its own evidence is incident to its obligation to determine the facts relevant facts at sentencing. Id. at 8. Still, the Court recognized that this power is not absolute. While ultimately rejecting Mr. Aragon’s argument, the Court did agree with Mr. Aragon on two preliminary points: (1) that a sentencing judge who gathers and elicits his own evidence “must take care not to create the appearance that he or she is less than totally impartial” and (2) that a district court’s power to gather and elicit its own evidence is “subject to abuse-of-discretion review.” Id. at 8, 10. The Court simply held that Mr. Aragon had not established an abuse of discretion on the particular facts of his case. Id. at 8-12.

The Aragon opinion ultimately sheds little broader light on when a district court’s sua sponte conduct at sentencing may go too far. The decision says that sua sponte actions may be overturned for an abuse of discretion. The opinion does not explain which factors are material to assessing whether a district court has abused its discretion, though it did deem significant that the judge had “made multiple statements to Mr. Aragon reassuring him that the manner in which the additional evidence was uncovered would not impact his sentence.” Id. at 11.

 B.          Must counsel disclose to the district court all information that “reasonably could be deemed” to affect the guidelines range?

A concurring opinion by Judge Holmes took aim at an ethical question that had been raised by the sentencing judge. In explaining his decision to gather and elicit evidence sua sponte, the district judge expressed the view that counsel for the parties had intentionally concealed the fact that contraband had been found in Mr. Aragon’s car and thereby acted improperly. Id. at 20 (Holmes, J., concurring). The principal opinion, however, described how defense counsel had disclosed at the change-of-plea hearing that contraband that might have increased Mr. Aragon’s offense level had been found in his car when he was arrested, and the Court assumed without deciding that the district court clearly erred in finding that the parties had acted deceptively. Id. at 2-3, 8-9 (principal opinion). Judge Holmes deemed himself “content with that assumption” and “d[id] not opine on the propriety of counsel’s actions in this case.” Id. at 20, 26 (Holmes, J., concurring). Nevertheless, speaking “hypothetically,” Judge Holmes wrote separately to offer his view that it would violate counsel’s duty of candor to the tribunal to “agree to intentionally withhold from the court’s consideration evidence that reasonably could be deemed to qualify as relevant conduct.” Id. at 24. Neither of the other two judges on the panel joined Judge Holmes’s concurrence.

 TAKEAWAYS

  •  Packaged Weights, Gross Weights, and Net Weights (Oh My?)

Be on guard for drug quantities that are reported as “packaged weights” or (equivalently) as “gross weights” — that is, the combined weight of drugs and their packaging. Likewise, be skeptical if quantities reported do not explicitly specify that they are “net weights” — that is, the weight of the drugs themselves, not including any packaging. Under U.S.S.G. § 2D1.1 n.1, the applicable drug quantity does not include packaging or other material “that must be separated from the controlled substance before the controlled substance can be used.” And the Aragon opinion highlights cases in which the difference between gross weight and net weight was large.

  •  No Guessing Allowed.

 Aragon is also useful because it reemphasizes the more broadly applicable principle that a drug quantity calculation must be grounded in something more than guesswork. Consider an objection on these grounds any time the Government’s or Probation’s drug quantity calculation is based on ambiguous or contradictory information.

  •  The Judge’s Authority to Investigate

 Aragon confirms that, as a general matter, a judge may gather and elicit evidence in connection with sentencing. Defense counsel should anticipate and, in appropriate cases prepare for, this possibility.

 

 

 

 

 

 

 

 

Practice Tip: Challenging “Crimes of Violence” and “Controlled Substance Offenses” under § 4B1.2 — Ideas about Inchoate Offenses

Figuring out how your client’s criminal history impacts their sentencing exposure is often no easy task. This is particularly so when you’re dealing with prior convictions that could be counted as “crimes of violence” or “controlled substance offenses” under the career offender guideline, § 4B1.2. Take a felon-in-possession sentencing, for example, where a single prior “crime of violence” will increase a client’s base offense level from 14 to 20—and potentially add years to his sentence.

That’s why it’s worth looking closely at every supposed “crime of violence” or “controlled substance offense,” and objecting to the characterization of that prior conviction if possible. Challenging priors might help your client now, or it might help later (read on for ideas about how to preserve arguments for appeal). Remember, a district court commits procedural error when it fails to properly calculate the correct Guidelines range. See, e.g., United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011).

Here are some arguments to consider if the prior conviction is for an inchoate offense such as conspiracy, aiding and abetting, or attempt.

THE BASICS

Is the prior conviction a categorical match for the generic offense?

When determining whether a particular conviction constitutes a “crime of violence” or “controlled substance offense” under § 4B1.2, courts apply the categorical approach and “look to the statute under which the defendant was convicted.” United States v Martinez-Cruz, 836 F.3d 1305, 1309 (10th Cir. 2016). That includes determining whether the elements of the generic, contemporary version of the relevant inchoate offense match up with the elements of the prior conviction. In Martinez-Cruz, for example, the Tenth Circuit found that the defendant’s prior conviction for federal conspiracy to possess with intent to distribute was not a “controlled substance offense” because—unlike generic conspiracy—that offense does not require proof of an “overt act.” See 836 F.3d at 1310-11.

To conduct this type of analysis, begin by taking a look at the underlying inchoate offense and figuring out what it requires the government to prove, and then compare it to similar offenses in other jurisdictions. In Colorado, for example, conspiracy is “unilateral,” which means it is “committed when the defendant agrees with another person to act in a prohibited manner; the second party can feign agreement.” People v Vecellio, 292 P.3d 1004, 1010 (Colo. Ct. App. 2012). But in other jurisdictions, conspiracy is “bilateral” and requires two co-conspirators to actually agree to commit a crime—you can’t “conspire” with an undercover law enforcement agent who is only pretending to agree. See, e.g., United States v Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985); People v Foster, 457 N.E.2d 405, 415 (Ill. 1983).

If there seems to be a real split in authority, it’s worth digging deeper to suss out the majority approach to the question—i.e., what counts as the generic form of the crime. If your client’s prior is broader than that generic crime, then it is not a categorical match for the offense, and cannot be counted as a “crime of violence” or “controlled substance offense” under § 4B1.2.

FORECLOSED BUT MIGHT BE WORTH PRESERVING

There are a couple of arguments in this vein that are foreclosed by Tenth Circuit precedent, but may be worth raising for preservation.

  • Does Application Note 1 unlawfully expand the definition of “crime of violence” to include inchoate offenses?

The practice of counting inchoate offenses as “crimes of violence” or “controlled substance offenses” is not actually rooted in the text of § 4B1.2. Rather, it is based entirely on Application Note 1 to that guideline, which states that the definitions of “crime of violence” and “controlled substance offense” “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”

That raises the question: Since when can the Sentencing Commission expand the scope of a guideline through its commentary? Unlike the guidelines themselves, the commentary are not subject to the Administrative Procedures Act. And while the Sentencing Commission is free to interpret the guidelines through commentary, the expansion of the guideline to include inchoate offenses arguably exceeds that interpretive authority. At least, that’s what the D.C. Circuit held in United States v Winstead, 890 F.3d 1082 (2018), and what a panel of the Sixth Circuit seemed to believe in United States v Havis, 907 F.3d 439 (2018). The Havis panel was bound to affirm the sentence by prior circuit precedent—but were apparently able to persuade the entire court to take the issue en banc. See United States v. Havis, 921 F.3d 628 (2019) (granting petition for rehearing en banc).

The Tenth Circuit previously rejected a version of this argument in United States v Martinez, 602 F.3d 1166 (2010). However, the issue may nevertheless be worth raising, in light of the new (and growing?) circuit split on the issue.

  • Is Colorado attempt broader than generic attempt, insofar as it defines “substantial step” to mean any conduct that is strongly corroborative of the actor’s criminal purpose?

The Tenth Circuit has held that generic attempt liability requires “the commission of an act which constitutes a substantial step toward commission of that crime,” United States v Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012), a formulation that derives from the Model Penal Code. The Model Penal Code, in turn, states that “[c]onduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose.” Model Penal Code § 5.01(2). In other words, it suggests that strongly corroborative conduct may constitute a substantial step—but not that it necessarily does.

By contrast, Colorado law provides that “[a] substantial step is any conduct . . . which is strongly corroborative of the firmness of the actor’s purpose to complete the offense.” Colo. Rev. Stat. § 18-2-101(1) (emphasis added). Under Colorado law, strong corroboration of criminal purpose is not merely necessary but rather sufficient to establish a substantial step, unlike the “unadulterated Model Penal Code approach.” People v Lehnert, 163 P.3d 1111, 1114 (Colo. 2007). In this way, Colorado attempt arguably sweeps more broadly than generic attempt.

The Tenth Circuit recently rejected this argument in United States v. Mendez, No. 18-1259 (10th Cir. 2019). This is another argument that may be worth raising for preservation purposes, in case the law changes in the future.

Takeaways

  • Look closely at any conviction that is classified as a “crime of violence” or “controlled substance offense.” It could make a big difference to your client’s sentence!
  • Be creative. The elements of the inchoate offenses—conspiracy, aiding and abetting, and attempt—vary across jurisdictions. Compare the elements of your client’s prior offense against those in other jurisdictions, and consider whether there’s a viable challenge under the categorical approach.
  • Focus on the text of the guideline. As the D.C. Circuit and several judges on the Sixth Circuit have noted, § 4B1.2 says nothing about inchoate offenses—and the Sentencing Commission lacks the authority to expand the reach of its guidelines through its commentary. While this argument is arguably foreclosed in the Tenth Circuit, it may be worth preserving in your client’s case.
  • Brush up on the categorical approach. This sentencing doctrine is hyper-technical and obscure—and it can produce real results for our clients. For a good overview of the categorical approach in general, take a look at United States v Titties, 852 F.3d 1257 (10th Cir. 2017). For an example of its use in the guidelines context, take a look at United States v Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016).

News You Can Use: Tenth Circuit Holds Colorado Attempted Robbery Is a Crime of Violence for Purposes of USSG 4B1.2(a)

When it comes to calculating your client’s advisory guidelines range, prior convictions that are counted as “crimes of violence” under USSG § 4B1.2 are bad news.

Section 4B1.2 doesn’t define what constitutes attempt.  Last week, the Tenth Circuit issued a published decision in United States v. Mendez, holding attempted robbery as defined in Colorado law qualifies as a crime of violence under the guidelines.

Be on the lookout for another post soon with more analysis about this ever-changing area of law and preservation arguments that might be worth making in your cases.

 

News You Can Use: Tenth Circuit Vacates Denial of Suppression Motion in a Published Decision (With Photos!)

In US v. Gaines, the Tenth Circuit vacated the denial of a motion to suppress in a published opinion, ruling: (1) the defendant was seized when police officers confronted him about reported drug sales in a parking lot; and (2) the subsequent discovery of an arrest warrant did not attenuate the connection between the seizure and the evidence. And they did so with style, buttressing their points with actual photographs of the alleged seizure in question. The opinion doesn’t break new legal ground, but it provides a nice review of some basic Fourth Amendment principles—and is a great example of creative appellate advocacy.

Background

Kansas City police received a 911 call reporting a man dressed in red had sold drugs in a local parking lot. Based on that call, uniformed officers driving two separate police cars pulled into the parking lot and parked behind a car occupied by a man wearing red clothing—Mr. Gaines. Police turned on their flashing roof lights and gestured for Mr. Gaines to get out of his car. To help established the scene, Mr. Gaines included the following image the Opening Brief:

Photo1

After Mr. Gaines got out of his car, one officer confronted him about the reported drug sale, observed an open container of alcohol, and smelled PCP. Officers told Mr. Gaines he would be detained. Mr. Gaines then grabbed a pouch from his car and fled the scene. He was soon captured. Meanwhile, police discovered cocaine, marijuana, PCP, drug paraphernalia, cash, and a handgun in his car.  Mr. Gaines unsuccessfully moved to suppress this evidence, and was convicted after trial. He appealed the denial of his motion to suppress.

Tenth Circuit Decision

The Tenth Circuit vacated the denial of the suppression motion in a published opinion, focusing on two issues: (1) whether there was a seizure; and (2) whether the relationship between the seizure and the evidence was attenuated.

  • There was a seizure

The Tenth Circuit found Mr. Gaines was seized because a reasonable person would not have felt free to leave the scene, and Mr. Gaines in fact yielded to the police’s show of authority. The opinion goes into a lot of detail about what specifically made the encounter a seizure, including that it involved uniformed police officers in marked police cars with flashing lights, where state law requires motorists to stop for flashing lights. The Court also emphasized one of the officers had gestured for Mr. Gaines to get out of his car before asking him an accusatory question.

  • There was no attenuation

The Tenth Circuit also rejected the government’s attempt to salvage the case through the attenuation doctrine. Under that doctrine, evidence does not need to be excluded if the Government can meet its heavy burden of showing that there is only a weak or attenuated connection to the asserted Fourth Amendment violation. When applying the attenuation doctrine, the court considers: (1) the temporal proximity between the alleged Fourth Amendment violation and the discovery of the evidence; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the police wrongdoing.

Specifically, the Tenth Circuit rejected the government’s arguments that either an outstanding arrest warrant or the subsequent development of probable cause established attenuation in this case. With respect to the warrant, the Tenth Circuit noted that executing the warrant and arresting Mr. Gaines would not automatically have allowed the search of his vehicle—citing the Court’s recent decision limiting officer authority to conduct warrantless searches of arrestees in US v. Knapp. The Court also observed that neither the warrant nor the observations arguably amounting to probable cause were discovered until after the challenged seizure. The Court therefore reasoned both the close temporal proximity and the absence of intervening circumstances weighed against application of the attenuation doctrine in this case.

Takeaways

  • Preservation matters. The standard of review is important, and this is another appellate win born of  preservation. Mr. Gaines moved before trial for an order suppressing all evidence derived from law enforcement’s initial seizure of him. The court held an evidentiary hearing on the motion, ultimately denying it. Mr. Gaines reasserted his motion towards the end of trial.  Notably, this belt and suspenders approach is commendable, but the issue was already preserved for appeal. Under  Federal Rule of Evidence 103(b):“[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” 
  • Detail matters. Suppression motions often require fact-intensive inquiries, and as this case demonstrates, it’s useful to do everything you can to marshal the facts in your favor. Explain in detail exactly what happened: How many police officers were there? What were they wearing? What were they driving? And what exactly did they do when they encountered the defendant? And then those details to the relevant legal standard.
  • A picture is worth a thousand words. Check out the Opening Brief  in this appeal(filed by the Kansas FPD). Sometimes, it’s useful not only to tell the court why your motion should be granted, but also show them. If there’s an image that really captures the essence of your argument, consider including it in your brief so your point doesn’t get lost in the shuffle. Nobody’s suggesting you file a comic book, but when done right, this technique shakes up legal writing and can be quite effective.
  • Arrest authority is not the end of the story. As the Tenth Circuit’s in-depth attenuation analysis demonstrates, the fact that police could have lawfully arrested your client doesn’t necessarily excuse any Fourth Amendment violations. Pick apart any attenuation argument to see if the Government’s claim holds up: Would an arrest really have led to the discovery of the evidence, independent of the Fourth Amendment violation? And can the warrant really be considered an “intervening event” that weakens the causal connection between the Fourth Amendment violation and the evidence sought to be excluded?

News You Can Use: SCOTUS holds Counsel has Duty to File a Notice of Appeal Despite an Appeal Waiver

In Garza v. Idaho, the Supreme Court recently ruled 6-3 that, if a defendant wants to appeal, defense counsel must always file a notice of appeal — even if the defendant has signed an appeal waiver and even if counsel judges an appeal to be frivolous or self-defeating. The opinion clarifies trial counsel’s obligations during the post-trial period. And the lineup of the Justices is potentially revealing.

Background

Mr. Garza entered into a plea agreement that included a clause stating he “waive[d] his right to appeal.” After sentencing, however, Mr. Garza clearly and repeatedly told his lawyer that he wished to appeal. Trial counsel did not file a notice of appeal, telling Mr. Garza “that an appeal was problematic because he waived his right to appeal.”

Later, Mr. Garza sought post-conviction relief, claiming that trial counsel rendered ineffective assistance by failing to file a notice of appeal despite Mr. Garza’s requests. The Supreme Court’s prior decision in Roe v. Flores-Ortega lent support to Mr. Garza’s claim. The Court had held in Flores-Ortega that trial counsel’s failure to file a notice of appeal when the client requests an appeal amounts to ineffective assistance of counsel. But the Idaho courts denied Mr. Garza’s claim, purporting to distinguish Flores-Ortega on the basis of the appeal waiver in Mr. Garza’s case.

Majority Opinion

The Supreme Court reversed in an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan, and Kavanaugh. Assessing the two elements of an ineffective assistance of counsel claim — deficient performance and prejudice — the Court held that, even in the face of appeal waiver, both elements are met when counsel disregards a defendant’s request to file an appeal.

Addressing the deficient performance element, the Court rejected the State’s argument that counsel could strategically decide not to file an appeal for fear of risking a breach of the plea agreement. The Court explained that, first, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope.” Second, “the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.” The Court noted that defense counsel’s obligation to perform the “purely ministerial task” of filing a notice of appeal did not imply an obligation to file a merits brief in the court of appeals, as defense counsel may move to withdraw from representing the defendant on appeal if the appeal would be frivolous.

Addressing the prejudice element, the Court held that a presumption of prejudice applied because counsel’s deficient performance “forfeit[ed] an appellate proceeding all together,” and there was no principled way to assess the reliability of a proceeding that never took place. An appeal waiver does not show that a defendant has no right to an appellate proceeding, the Court explained, because there are some issues that can always be appealed notwithstanding an appeal waiver — including but not limited to the issue of whether the appeal waiver itself was knowing and voluntary. The Court rejected the federal government’s argument for a case-by-case assessment of whether the defendant planned to raise an issue outside the scope of the appeal waiver as unworkable.

The Dissent

Justices Thomas, Gorsuch, and Alito dissented. Justice Thomas authored the dissent, which Justice Gorsuch joined in full and Justice Alito joined only in part. In the section joined by each of the dissenters, Justice Thomas maintained that a case-by-case inquiry into deficient performance and prejudice should be required. In a more radical section of the dissent, joined only by Justice Gorsuch, Justice Thomas argued that the Sixth Amendment, as originally understood and ratified, “meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Thus, Justice Thomas (and Justice Gorsuch) suggested that landmark decisions reading the Sixth Amendment to require “counsel at taxpayers’ expense” (i.e., Gideon) and to guarantee “effective counsel” (i.e., Strickland) were wrongly decided. At a minimum, Justice Thomas maintained “the Court should tread carefully before extending our precedents in this area.”

 

Takeaways

  • Whether to appeal is up to the client. The defendant’s right to decide whether to appeal his case is a vital procedural protection.While defense counsel may advise the client that an appeal would be pointless, the client’s decision to proceed on appeal controls — just like the client controls other final decisions including whether to plead guilty or go to trial. An  amicus brief filed in the Garza litigation explains why fundamental principles of constitutional law and legal ethics vest the final decision to appeal in the client.
  • If the client wants to appeal, counsel must file a notice of appeal, even if the plea agreement contains an appellate waiver. Defense counsel must always file a notice of appeal when the client expresses the desire to appeal. In Roe v. Flores-Ortega, the Supreme Court held that when an attorney “disregards specific instructions from the defendant to file a notice of appeal,” the attorney has rendered deficient representation, and the defendant should be “presum[ed]” to have suffered prejudice. 528 U.S. 470 (2000). Garza teaches that the existence of an appeal waiver in a plea agreement does not change counsel’s fundamental obligations in this area.
  • Garza resolves a circuit split but doesn’t really change Tenth Circuit law. Since 2005, the Tenth Circuit has applied the rule in Flores-Ortega with equal force where a defendant enters a guilty plea containing an appeal waiver. In U.S. v. Garrett, the Tenth Circuit held that an “[a]ppellate waiver does not foreclose all appellate review” a sentence, and if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.”See US v Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005).
  • Of course, you may end up filing an Anders brief. If you think the appeal is frivolous, keep in mind the procedure under Anders v California, 386 U.S. 738, 744 (1967). That is, when a client asks his lawyer to file an arguably frivolous appeal, the lawyer should file a notice of appeal, submit “a brief referring to anything in the record that might arguably support the appeal,” and request permission to withdraw. This procedure, requiring lawyers to file “Anders briefs,” allows defense counsel to act “with honor and without conflict,” and it preserves defendants’ right to appeal. For additional requirements on Anders briefs in the Tenth Circuit, see the Tenth Circuit Rules on the subject, particularly 10th Cir. R. 46.4(B)(1) through (3), and US v Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015).
  • Don’t just assume an appellate waiver is enforceable. Like it or not, appeal waivers are a part of plea agreements in the Tenth Circuit. But appellate waivers are not absolute and even the broadest waivers can sometimes be challenged. Review the appellate waiver enforcement analysis in US v Hahn, the key case on the issue in the Tenth Circuit, to determine if the appeal falls within the scope of the appellate waiver, if the defendant knowingly and voluntarily waived his appellate rights, or whether waiver will result in a miscarriage of justice.

News You Can Use: Tenth Circuit Limits Officers’ Authority to Search Incident to Arrest

In United States v. Knapp, the Tenth Circuit reversed the denial of a motion to suppress and held a warrantless search of an arrestee’s purse could not be sustained as a search incident to arrest.

Defendant Stacy Knapp was arrested on an outstanding warrant. Police officers seized the purse she was carrying and handcuffed her behind her back. The police walked Ms. Knapp to the police car while they carried her purse.  An officer then put Ms. Knapp’s purse on the hood of the car, about three to four feet away from Ms. Knapp (who was still handcuffed). One officer stood next to Ms. Knapp and two other officers were nearby. After Ms. Knapp admitted there was a gun inside her purse, an officer searched the purse and recovered a pistol.

The Government argued the warrantless search was permissible as a search incident to Ms. Knapp’s arrest. The Tenth Circuit disagreed and held that the search violated the Fourth Amendment.

First, the Court rejected the Government’s argument that the search of Ms. Knapp’s purse amounted to a “search of the person,” which is allowed automatically under United States v. Robinson. The Court held that Robinson should be limited to searches of an arrestee’s clothing — explicitly rejecting authority from other courts that had extended Robinson to apply to searches of handheld containers. The Court explained that searches incident to arrest are justified by the possibility that an arrestee might have a weapon and by the officers’ need to disarm her. In this light, automatic searches of an arrestee’s clothing make sense because separating an arrestee from her clothing to deny her access to any weapon “would be impractical (not to mention demeaning).” But that rationale doesn’t apply to handheld containers like purses, the Court held, because such items are “easily capable of separation from [the] person.”

Second, the Court rejected the district court’s holding that the search of Ms. Knapp’s purse was justified on the ground that she could have accessed it at the time of the search. The Court recognized that, under Chimel v. California, police can search not only an arrestee’s person but also anything else they reasonably believe the arrestee might access to get a weapon or destroy evidence. However, the Court held that, unlike Robinson searches, Chimel searches are not automatic and “must be justified on a case-by-case basis by the need to disarm or to preserve evidence.” Further, the Court held that Arizona v. Gant, which arose in the context of an automobile search, was not limited to that context and required the Court to evaluate “the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest, regardless of whether the search involved a vehicle.” Applying Gant and Chimel, the Court held that “it was unreasonable to believe Ms. Knapp could have gained possession of a weapon or destructible evidence within her purse at the time of the search.” Ms. Knapp could not have accessed the contents of her purse, the Court explained, because “not only were Ms. Knapp’s hands cuffed behind her back, [an officer] was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.”

Takeaways

  • Preservation matters. This awesome appellate win was born in the district court.  The trial lawyers made a great record, filing a motion to suppress on Fourth Amendment grounds (and later, a reply in support of the motion) and emphasizing the government’s burden to prove that the search and seizure was reasonable.  Because the issue was raised and ruled upon below, the Tenth Circuit applied de novo review on appeal. This favorable standard of review is the result of preservation; and it was the first step on the path to victory.
  • A purse is not a pocket! Searches “of the person” incident to an arrest are allowed automatically, but such searches are limited to searches of the arrestee’s clothing and cannot extend to a search of a handheld container, like a purse.
  • A search of the “grab area” must be justified.  A search of the area within the arrestee’s immediate control (the “grab area”) is not a search “of the person” and must be “justified on a case-by-case basis by the need to disarm or to preserve evidence.”
  • Justification depends on what’s happening at the time of the search, not the time of the arrest.  If, at the time of the search, it isn’t reasonable to believe that an arrestee could access a place or item to destroy evidence or get a weapon, the search of that place or item cannot be justified as a search incident to arrest.