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February 28, 2009

The latest chapter in the amazing sentencing story of Patrick Lett

Regular readers may recall the amazing sentencing story of my client Patrick Lett.  This local press account reports on the latest amazing news in his amazing case:

Patrick Lett walked out of a federal courtroom in Mobile Friday as a free man.  Considering the twists and turns that his case has taken over the last 3.5 years, that was no small event.

The Army veteran from Pascagoula watched in April 2006 as U.S. District Judge William Steele handed down a five-year prison sentence.  Within days of the hearing, Steele entered a judgment amending the sentence to the 11 days Lett had spent in jail, trying to correct what the judge, himself, now calls a mistake.

But the U.S. Attorney's Office in Mobile appealed, and the Atlanta-based 11th U.S. Circuit Court of Appeals ruled that Steele could not change his mind.  That sent the case back to Mobile, where it appeared all but certain that Lett would be sentenced to prison for five years.

But Steele on Friday agreed with the defense that a decision by the U.S. Sentencing Commission to change advisory guidelines for certain crack cocaine offenders gave him newfound discretion to reduce the five-year prison term. Steele sentenced Lett to time served — the sentence that the judge felt that Lett deserved all along....

Steven Butler, the chief of the appellate division for the prosecutors' office in Mobile, objected that the short sentence was "procedurally and substantively unreasonable" and argued that the judge exceeded his authority. Prosecutors could take the case back to the appeals court, although Butler on Friday gave no indication of his next move.

Lett, 40, is a veteran of both the first Gulf War and the current Iraq war. He left the Army in 2004 when he began selling crack cocaine in Monroe County for his cousin, Michael Lett.  After about five weeks that fall, Patrick Lett quit peddling drugs and rejoined the Army.  He was back in uniform by the time a federal grand jury indicted him.

Steele said he was impressed by Lett's military service, the testimony of his fellow soldiers and his reform, which was unprompted by an encounter with the criminal justice system.  The judge said he sees many a defendant who tells him he has repented and changed his ways.  "But the difference between them and Mr. Lett is that all of them repented after they had been caught," he said.

Though I have been proud to have a chance to represent Patrick Lett in various appellate proceedigns, both Patrick and I were especially lucky to have the pro bono help of former Ohio State Solicitor Douglas Cole (who is now at Jones Day).  Doug Cole deserves more credit than me for helping to secure this outcome for Patrick.

Some related posts on the Lett case:

February 28, 2009 at 08:07 AM | Permalink

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Comments

congratulations Doug

Posted by: bruce cunningham | Feb 28, 2009 10:49:36 AM

There is always hope for reason.

Posted by: beth | Feb 28, 2009 12:41:12 PM

The Judge had NO authority -- NONE -- to reduce his sentence below the minimum in the reduced guidelines range. This is an easy win for the Government, should it decide to appeal.

Posted by: Steve | Feb 28, 2009 5:27:22 PM

Have you read the briefs, Steve? Would you expand and provide more support (with some cites, ideally) for your forceful assertion here? I make this request in part because the Government itself did >NOT make such an argument to Judge Steele below. In fact, it conceded that Judge Steele DID have authority to reduce Lett's sentence below the minimum in the reduced guidelines range, and thus the only real dispute before Judge Steele was how much that reduction should be in light of applicable law.

So, since we may have to defend Judge Steele's sensible ruling on appeal, I would be grateful for you to expand on your (seemingly uninformed) assertion that this "is an easy win for the Government." Thanks in advance for your help.

Posted by: Doug B. | Mar 1, 2009 11:52:13 AM

Steve, I think you're assuming that the time served sentence was imposed as part of a 3582(c)(2) proceeding for the retroactive application of the amended crack guidelines. If that was the case, most (though not all) of the circuits have held that the judge can't go beyond the Guideline range because _Booker_ doesn't apply. I'm not sure whether the 11th Circuit has addressed the issue yet, tho'.

However, it looks from the article like this was a resentencing after remand of the original sentence from the 11th Circuit. If that's the case, it was a full on resenencing from the ground up and which _Booker_ and its progeny apply. Thus, the judge would have the authority to impose a sentence below the Guideline range.

Posted by: JDB | Mar 1, 2009 12:48:28 PM

FYI, JDB, this sentence was in fact "imposed as part of a 3582(c)(2) proceeding for the retroactive application of the amended crack guidelines." Based on the USSC commentary, the Government conceded that a below guideline sentence was legally permissible, but they objected to the sentence being too much below the recalculated guideline range. We argued that a sound reading of the USSC commentary made a time served sentence both permissible and fully justified in light of this case's unique facts.

As all these comments highlight, casual assertions and punditry about this kind of very complicated case ought not make assumptions about complicated legal issues without reviewing the actual court filings. For a variety of reasons, I have not posted all the filings in this case while my client's fate is still subject to active litigation (though they are available via PACER). As my comments likely reveal, I am trying my best to avoid having too many public misconceptions of this case while at the same time being very sensitive to my ethical obligations to my client, my adversaries and the court system.

Posted by: Doug B. | Mar 1, 2009 1:26:57 PM

The commentators who suggest that the 3582(c)(2) reduction below the amended GL range was improper, seem to assume that the district court went below the amended GL range due to "Booker" making the amended GL merely advisory. If that was the case, then yes, the govt. has a good appellate issue because there is a Circuit split on whether the amended GL range is advisory or mandatory.

However, I'm assuming that the below-amended-GL sentence was NOT done pursuant to any "Booker" advisory argument, but rather pursuant to 1B1.10(b)(2)(B), which explicitly allows a district court to go below the amended GL range when "the original term of imprisonment imposed was less than" what the original GL called for. Based on my memory, this provision is entirely applicable in Mr. Lett's case.

The only troublesome part about any 1B1.10(b)(2)(B) argument is that provision's statement about "a further reduction generally ... not be[ing] appropriate" if the original non-GL sentence was done under Booker/3553(a) ansysis. Yet even this does not categorically prevent a below-amended-GL sentence. Even though the Commission stated its belief that a "further reduction" would not be appropriate in Mr. Lett's case, nobody should claim that the policy statement prohibited one. (On a side note, the Commission has explained this provision as meaning that the original sentence was imposed under 3553(a) and therefore a reduction in the GL range should not impact that analysis. In other words, they thought any variance sentence was imposed independent of the original GL range. This is, of course, a ridiculous belief b/c we all know that when a court varies, its still acting with the GL range in mind. And any 3553(a) analysis must take the GL range into account. Regardless of the ridiculous rationale, the provision does not prohibit a further reduction, but merely states it is “generally” discouraged).

If the dist. ct. arrived at the time-served, below-amended-GL sentence for Mr. Lott under USSG 1B1.10(b)(2)(B), then it is an entirely proper sentence.

Posted by: DEJ | Mar 2, 2009 12:08:31 PM

If DEJ's last post is correct about the original sentence, then I have to revise my position. I had thought the original sentence was a GL sentence.

Posted by: Steve | Mar 2, 2009 9:32:51 PM

Hmm....

Posted by: BAE | Mar 12, 2009 9:09:13 AM

Hmm...

Posted by: BAE | Mar 12, 2009 7:12:44 PM

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