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October 18, 2007

Possible ineffective assistance in an Eighth Circuit crack appeal that nobody sees

Though perhaps I am trying to turn this into a "dogs not barking" story, I am very troubled to see that Eighth Circuit today apparently affirms a within-the-old-crack guidelines sentence in an unpublished Anders case in US v. Wanton, No. 06-3502 (8th Cir. Oct. 18, 2007) (available here).  The facts are scarce in this unpublished disposition, but it appears that the defendant in Wanton pleaded guilty to distributing more than 50 grams of crack and received a bottom-of-the-range sentence of 135 months in prison.  Since the Eighth Circuit has adopted a presumption of reasonableness for within-guideline sentences, perhaps it seemed obvious to the defense counsel that a sentencing appeal was friviolous.

But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton.  Indeed, unless the district court record demonstrates that the district judge was aware at sentencing of all these developments, I think it is a form of ineffective assistance for a defense attorney to assert that any appeal of a within-the-old-crack guidelines sentence is frivolous.

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Comments

But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton

?

Last I checked, none of this was binding authority on anyone.

Posted by: | Oct 18, 2007 2:53:14 PM

There are no dogs in the vicinity of this one--not one of those points listed is binding authority. How could you possibly contend that it is ineffective assistance of counsel to file an Anders brief where a defendant's only argument is that his bottom-range guideline sentence is unreasonable? If the district court had nothing to say on Kimbrough or didn't express disapproval of the crack ratio, the Supreme Court case has no effect here. And the proposed changes are just that--proposals by an independent body.

Posted by: MEK | Oct 18, 2007 4:17:27 PM

I would want to know more before concluding it was ineffective counsel.

For example, was there a plea agreement that said both the government and the defendant would request the bottom of the Guidelines? Did Mr. Wanton ask/advocate for the 135-month sentence in the district court? See United States v. Mancera-Perez, __ F.3d __, 2007 WL 2823479, at * 4 (10th Cir. 2007) (holding that a defendant's substantive reasonableness argument on appeal was "invited and waived" when he had requested the sentence). Did the government and Mr. Wanton have some type of another agreement, or where there aggravating circumstances whereas a 135-month sentence was actually to Mr. Wanton's windfall?

While I ask all of these questions, I agree that if this is just the run of the mill crack case where the court applied the soon-to-be old Guidelines and sentenced at the bottom, it would not be frivolous to argue unreasonableness. I guess more information is needed. (Maybe the appellate court had this information, but the 2-page opinion does not suggest the answers to my questions).

Posted by: DEJ | Oct 18, 2007 4:26:36 PM

DEJ highlights the key point here: the defense counsel is saying through an Anders brief that IT IS FRIVOLOUS to argue that a within-the-old guideline crack sentence is unreasonable under 3553(a). Meanwhile, the USSC in May issued a 100+ page report explaining in its expert opionion that the old guidelines do not serve the purposes of sentencing Congress set forth in 3553(a). How then can it be frivolous to contend on appeal that a within-the-old guideline crack sentence is unreasonable.

Sadly, it may be true that the state of defense advocacy is so low that simply accepting a guidelines sentence does not amount to deficient performance. But, in the end, that just highlights the sad state of defense advocacy.

Posted by: Doug B. | Oct 18, 2007 8:15:42 PM

Rather than get hung up on the ineffective assistance tag, it may be more palatable to say that counsel should have argued that the rule of lenity apply under the peculiar circumstances of this case, extending himself beyond the mere technical position. Those who argue that an Anders brief satisfied the barest minimum expectation of the defense miss the point. There was a non-frivolous argument to be made, and that failed to happen.

Posted by: Scott Greenfield | Oct 19, 2007 7:13:25 AM

Here's CA7 on why Kimbrough doesn't matter in a case like this: 2007 WL 2981172

While I think that CA8 is RIGHT that its frivolous to argue on appeal that a within-guidelines crack sentence is unreasonable, maybe its IAC not to make such an argument before the district court.

Posted by: notsure | Oct 19, 2007 11:14:18 AM

Can you be more clear about what it is that you are trying to convey?

Posted by: M. P. Bastian | Oct 19, 2007 10:08:55 PM

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