« The joys of Justice Breyer | Main | An update, and insights, on Blakely in Ohio »

June 13, 2005

Ineffective sentencing advice from 5th Circuit

Though the busy Eighth Circuit has the pipeline still whooshing along with three more Booker dispositions today (available on this official opinion page), catching my eye this afternoon is a decision coming from the Fifth Circuit (per Judge Prado) in US v. Herrera, No. 04-50633 (5th Cir. June 10, 2005) (available here).  Herrerra concerns a defendant's claim that trial counsel was constitutionally ineffective because he allegedly misrepresented the maximum exposure the defendant faced under the sentencing guidelines if convicted.

Though I won't speculate about how the Herrara decision might affect Judge Prado's draft prospects, I will speculate that language from Judge Prado's Herrara opinion may be drafted by many defendants claiming they got bad sentencing advice from their counsel.  Here is some of the Herrara court's explanation for why an remand for an evidentiary hearing on the defendant's IAC claim was required:

One of the most important duties of an attorney representing a criminal defendant is advising the defendant about whether he should plead guilty.  An attorney fulfills this obligation by informing the defendant about the relevant circumstances and the likely consequences of a plea.  Apprising a defendant about his exposure under the sentencing guidelines is necessarily part of this process. A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial.  Failing to properly advise the defendant of the maximum sentence that he could receive falls below the objective standard required by Strickland....

An attorney who underestimates his client's sentencing exposure by 27 months performs deficiently because he does not provide his client with the information needed to make an informed decision about accepting a plea offer or going to trial.  Not only would the attorney's assistance be deficient under these circumstances, a 27-month increase in a sentence constitutes prejudice under the second prong of Strickland.

June 13, 2005 at 03:06 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Ineffective sentencing advice from 5th Circuit:


Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB