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April 13, 2009

Eleventh Circuit rejects arguments for a right to counsel at crack sentence modification proceedings

Addressing an interesting right to counsel issue, the Eleventh Circuit today in US v. Webb, No. 08-13405 (11th Cir. April 13, 2009) (available here), concludes that "there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or hearing [and thus] the decision to appoint an attorney is left to the discretion of the district court."  I believe that this Webb ruling is the first circuit decision on this right to counsel issue in the application of the US Sentencing Commission's recent reduction of crack guideline sentences, but the Eleventh Circuit says that other circuit have come to the same conclusion in earlier decisions:

The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus.  See United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996) (per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995).  As the Fifth Circuit noted, a § 3582(c)(2) motion “is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines,” rather than “a challenge to the appropriateness of the original sentence.” Whitebird, 55 F.3d at 1011.  A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing. See id.; see also Townsend, 98 F.3d at 512–13 (agreeing with Whitebird’s rationale).  Additionally, we decline to find that the Fifth Amendment provides a mandatory right of counsel for all § 3582(c)(2) motions as a matter of fundamental fairness. The Federal Rules of Criminal Procedure permit courts to hold § 3582(c)(2) hearings without defendants being present. See Fed. R. Crim. P. 43(b)(4). Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel.

A footnote at the end of this discussion adds this important point that may help mitigate the practical impact of this ruling in many settings:

We note that courts have the discretion to appoint counsel.  See Whitebird, 55 F.3d 1011.  Given the array of factors that courts now must consider in deciding whether to reduce a sentence under § 3582(c)(2), there may be instances in which equitable concerns would make the appointment of counsel appropriate to ensure a just outcome.  See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (appointing counsel in § 3582(c)(2) proceeding “in the interest of justice” and noting that the “new complexities” created by changes to the sentencing guidelines might necessitate reconsideration of whether there should be a statutory or constitutional right to counsel in all such cases).

April 13, 2009 at 01:05 PM | Permalink

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Comments

"Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel."

How does it follow that if right A is at least broad as right B, and right B does not encompass proceeding C, that right A does not encompass proceeding C?

What am I missing?

Posted by: RW | Apr 13, 2009 3:24:05 PM

CA11 is not the first circuit to weigh in on the issue. See U.S. v. Forman, 553 F.3d 585, 590 (7th Cir. 2009).

Posted by: helping | Apr 14, 2009 12:38:05 PM

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