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The lawyers were clueless and dangerous.; But ineffective, fortunately.
Topic Started: Feb 11 2009, 03:14 AM (317 Views)
Tidbits

http://www.ca9.uscourts.gov/datastore/opinions/2009/02/10/0710368.pdf

Opinion by Judge Reinhardt


Quote:
 
After pleading guilty to a multiple-count indictment charg-
ing, inter alia, two independent firearms counts under 18
U.S.C. § 924(c), Jose and Abraham Beltran-Moreno benefit-
ted from the district court’s erroneous construction of that
statute at sentencing. They should have quit while they were
ahead.



Quote:
 
This was
error, the result of which was the calculation of a mandatory
minimum sentence of twenty years, which was twenty years
lower than that required by statute
, a sentence that would
seem quite reasonable, but for the Court’s decision in Deal.
Remarkably, the defendants’ good fortune did not stop
here. Under the United States Sentencing Guidelines, each
defendant’s offense conduct established an offense-level score
of over forty-two points. Regardless of a defendant’s criminal
history, the Guidelines recommend that someone convicted of
so high an offense level be sentenced to no less than life in
prison
. See U.S.S.G. § 5A. However, as has been clear since
United States v. Booker, 543 U.S. 220 (2005), the Sentencing
Guidelines are now merely advisory. The Beltrans were fortu-
nate enough to be sentenced by a district judge who appears
to have taken Booker’s mandate to heart. Taking into account
the defendants’ characteristics, the nature of their crimes, and
other relevant factors, the district judge exercised his discre-
tion under 18 U.S.C. § 3553(a) to depart downward from the
Guidelines recommendation, sentencing the defendants to
thirty-five years in prison instead of imprisoning them for the
rest of their lives as the Guidelines suggest, but no longer
mandate.
In the end, the defendants did not just avoid life sentences.
Because of the district court’s unawareness of Deal, they
received sentences five years below the mandatory minimum.
Such good fortune does not come often in our criminal justice
system
, especially in prosecutions under § 924(c), which fre-
quently result in extremely harsh sentences. Cf. United States
v. Hungerford, 465 F.3d 1113, 1119 (9th Cir. 2006) (Rein-
hardt, J., concurring in the judgment) (criticizing a sentence
of 159 years imposed pursuant to § 924(c) on “a 52 year-old mentally disturbed woman with no prior criminal record” who
never touched a gun and believed herself to be actually inno-
cent); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.
1998) (“urg[ing] Congress to reconsider its scheme of manda-
tory consecutive minimum sentences”). As a result of the dis-
trict court’s exercise of discretion and its separate statutory
miscalculation, the Beltrans dodged two bullets: the Guide-
lines’ recommended life sentence, and the mandatory mini-
mum sentence
required by § 924(c).
[1] The Beltrans’ trial counsel had the good sense not to
object to the district court’s sentence, which — given that it
was lower than legally permitted — was certainly better than
they could have possibly imagined. Their appellate counsel,
however, have exhibited anything but good sense. For reasons
beyond our understanding, the Beltrans have appealed their
sentences, arguing that instead of imposing a mandatory mini-
mum of twenty years, the district court should have consoli-
dated the two § 924(c) sentences into a single five-year term
and imposed a fifteen-year minimum sentence for each of
them. This argument is squarely foreclosed by decades-old
circuit precedents.




Quote:
 
Counsel do not
urge us to reconsider any of these precedents; rather, they
appear simply to be ignorant of the controlling law.



Quote:
 
[2] In short, if the Beltrans’ sentences were to be altered,
there appears to be only one direction in which they could go,
and that is up — by at least five years.
Fortunately for the
defendants, in a decision issued one year after they filed their
notices of appeal, the Supreme Court held in a case with simi-
lar facts to this one that an appellate court cannot raise a
defendant’s sentence if the government has not appealed,
even to raise the sentence to the statutorily required minimum.
See Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008).
Here, the government has for some reason — we would like
to think out of a sense of justice or mercy — exercised its dis-
cretion not to seek on appeal the additional years of incarcera-
tion for which the statute provides. This decision alone has
saved one of the Beltrans, Abraham, from a higher sentence,
despite his counsel’s efforts to the contrary.

[3] The other appeal, Jose’s, is more brazen, and accord-
ingly holds more potential for self-immolation.
Jose does not
simply challenge the computation of the mandatory minimum
sentence under § 924(c), but also challenges the district
court’s exercise of its discretion in imposing a thirty-five year
sentence instead of the recommended term of life in prison.
Jose believes the thirty-five year sentence is unreasonably
high as well as procedurally invalid and asks us to vacate it
and remand for resentencing. Although the Supreme Court
has observed that, were we to remand the matter, the district
court would not be permitted to raise Jose’s mandatory mini-
mum sentence sua sponte following the government’s failure
to appeal, see Greenlaw, 128 S.Ct. at 2570 n.8, it is hard to
imagine that were we to vacate the sentence and instruct the
district court to start its reasonableness analysis anew, as Jose
asks, it would ignore the fact that its original sentence was
statutorily impermissible. In other words, were Jose to prevail
on his challenge to the substantive and procedural validity of
his sentence, we cannot imagine that he would receive a more
favorable sentence, although he might very well receive a
higher one.
Compare id., with id. at 2576 n.2 (Alito, J., dis-
senting) (discussing Booker remands resulting in higher sen-
tences).
[4] The odd posture of Jose’s appeal brings to mind Oscar
Wilde’s oft-noted adage: “When the gods wish to punish us,
they answer our prayers.” Judges, however, are not gods, and,
fortunately for Jose, there is no basis in the law to grant his
prayer for “relief.” The district court’s sentence was procedur-
ally sound under § 3553(c), as it adequately explained the
rationale for its discretionary decision to depart downward
from the recommended life sentence. Nor could the sentence
possibly be unreasonably high as a substantive matter, as it
was lower than legally permitted. Cf. United States v. Valente,
961 F.2d 133, 134 (9th Cir. 1992) (“[D]istrict courts do not
have discretion to depart downward from mandatory mini-
mum sentences imposed by statute.”). Thus, Jose’s appeal
fails on both grounds, thereby sparing him from the adverse
consequences he likely would have suffered had he suc-
ceeded.




Quote:
 

We hope that this case will serve as a strong warning for
the defendants’ appellate counsel. Only by the unanticipated
fortuity of Greenlaw, combined in Jose’s case with a failure
to present persuasive arguments on the merits, have counsel
avoided a disposition that would have raised their clients’
terms of incarceration by at least five years and, at least in
Jose’s case, likely far more. Moreover, at the time the Bel-
trans filed their appeal they did not know whether the govern-
ment would file a cross-appeal, cf. Fed. R. App. P.
4(b)(1)(B)(ii); if it had, its success would have been inevitable
and the imposition of higher sentences unavoidable.



[5] “The right to counsel plays a crucial role in the adver-
sarial system embodied in the Sixth Amendment, since access
to counsel’s skill and knowledge is necessary to accord defen-
dants the ‘ample opportunity to meet the case of the prosecu-
tion’ to which they are entitled.” Strickland v. Washington,
466 U.S. 668, 685 (1984) (emphasis added) (quoting Adams
v. United States ex rel. McCann, 317 U.S. 269, 275-76
(1942)). We remind counsel that the professional norms that
establish the constitutional baseline for their effective perfor-
mance indisputably include the duty to research the relevant
case law and to advise a client properly on the consequences
of an appeal. While it is ultimately the client’s right to pursue
an appeal, we seriously question the quality of counsel’s
advice when an appeal with essentially zero potential benefit
and a significant opportunity for harm is pursued in such a
manner as this one has been. We also remind counsel of their
ethical obligations not to present arguments to this court that
are legally frivolous. Fortunately, in this instance, counsel did
no serious harm to their clients, and have escaped this appeal
without the imposition of sanctions. However, in the future,
we caution counsel to be more diligent, for their own sakes
and, more important, for their clients’.



The court refused to hold oral argument. That was a mistake. I wanted to hear it. What fun! Oh well.
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