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February 11, 2008

The amazing federal sentencing story of Sgt. Patrick Lett

Regular readers may recall some prior posts about the sentencing of Sgt. Patrick Lett (many of which are linked below).  I am proud that Sgt. Lett is now my client and that, along with my colleague Douglas Cole of Jones Day, I can report that a cert petition is about to be filed on Sergeant Lett's behalf. 

And I am pleased to report that Adam Liptak's Sidebar column in Tuesday's New York Times tells Sgt. Lett's story.  Here are long excerpts from a story that should become a movie (especially if there is the appropriate happy ending):

Matthew Sinor was in his second year of law school at Ohio State a couple of years ago when he heard that an Army buddy had gotten into trouble with the law.  Mr. Sinor rescheduled two exams and flew to Mobile, Ala., to make sure nothing went awry at his friend’s sentencing hearing.

The defendant, Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine.  It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.

Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...

Judge Steele made plain that he wanted to give Sergeant Lett the briefest possible sentence.  But Congress had set a mandatory minimum sentence of five years, Judge Steele said, and that is the sentence he reluctantly imposed. 

Mr. Sinor, the law student sitting in the courtroom, had studied sentencing law with Douglas A. Berman, an Ohio State law professor and one of the nation’s leading experts on the subject. Judge Steele had, Mr. Sinor believed, overlooked a five-part statutory “safety valve” that permits shorter sentences for defendants with unblemished backgrounds who played minor roles in crimes that did not involve violence and who had told the truth about what happened.  Few defendants qualify.  Sergeant Lett did.  So Mr. Sinor wrote to Judge Steele, with copies to the lawyers, explaining the point they had all missed.

Judge Steele agreed, and he revised Sergeant Lett’s sentence to time served — 11 days.  The next day, the judge invited Sergeant Lett to his chambers for a chat. “You should thank God for a friend like Matt,” Judge Steele said, as Sergeant Lett recalled. “I want you to go back in the military to do some good for your country. I know I will never see you again in my courtroom.”  Later, Judge Steele amended the conditions of Sergeant Lett’s probation to allow him to carry a weapon, a necessity in his line of work....

In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele. The decision was frank in its admiration for a fine soldier and mechanical in its application of the law. The appeals court did not discuss whether Judge Steele had been right to apply the “safety valve,” saying “reasonable arguments can be made on both sides.” Instead, the panel said that the law simply did not allow Judge Steele to revise the sentence once he had imposed it.

True, there is a rule of criminal procedure that allows judges to “correct a sentence that resulted from arithmetical, technical or other clear error,” so long as they do it within seven days. Math can be fixed. But since Judge Steele’s mistake was in his understanding of his own power to do justice, the panel said, Sergeant Lett must serve five years.

Put another way, Judge Steele could have sentenced Sergeant Lett to time served at the sentencing hearing. By the next day, though, it was too late.

Professor Berman and Douglas R. Cole, of Jones Day in Columbus, Ohio, plan to file a petition to the Supreme Court on behalf of Sergeant Lett on Tuesday. They are working without pay. “This is a person who causes those who know him to go to extraordinary lengths to help him,” Mr. Cole, a former Ohio solicitor general, said of his client.

Some related posts:

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Wow, what a story. I hope you win.

Posted by: Steve | Feb 11, 2008 11:53:23 PM

I was going to write "wow, what a story" (seriously) but someone beat me to it.

Good luck.

Posted by: Barksdale | Feb 12, 2008 12:42:41 AM

Is there an ineffective assistance of counsel claim?

Posted by: Confused | Feb 12, 2008 1:47:06 AM

Good luck with your appeal. Sgt. Lett seems to have been caught in the machine, and the machine is not fair to him at all.

Posted by: William Jockusch | Feb 12, 2008 6:23:41 AM

How are you going to respond to the allegations that giving people “credit” for military experience will mean that gangs will simply recruit veterans?

I don’t mean to be flippant here, but every time someone makes an argument for reducing sentences of a certain class of people, this is the inevitable response.

Posted by: S.cotus | Feb 12, 2008 9:35:08 AM

The 11th Circuit sat in New Orleans for this case? Seems unlikely.

Posted by: | Feb 12, 2008 10:04:59 AM

I just read CA11's opinion and, unfortunately, I think it's mostly right. How to argue that the error was "clear" as required by 35(a)? BUT, and I haven't researched this at all, it seems like it certainly should be considered "technical." Only problem is the following: "The district court did not claim, and Lett does not argue, that the court made an arithmetical or technical error in imposing the original sentence of sixty months." Sigh. I'm looking forward to reading the cert petition.

Posted by: YesBut | Feb 12, 2008 10:33:43 AM

Did Lett appeal his original sentence? If not, why not? I am always skeptical of headlines describing a court decision as relying on a "technicality." To me, that usually means that reporter just does not agree with some principle of law. A sentence was imposed, possibly in error. The defendant had a right to appeal that error. Did he do so? If not, why not? If the answer is: because his lawyer screwed up, then this is a 2255 case. The rule for correcting arithmetic errors is not applicable. Why not just go the 2255 route?

Posted by: Mark | Feb 12, 2008 10:59:54 AM

7 days after the original sentencing, the district court modified the 5 year sentence to time served (11 days). The government appealed. The 11th Circuit vacated and remanded with instructions to re-impose the 5 year sentence. 483 F.3d 782, 791 (11th Cir. 2007).

2255 is not pertinent here.

Posted by: | Feb 12, 2008 11:23:09 AM

There was a sentence appeal waiver, so Lett couldn't directly appeal his sentence to the circuit court.

Posted by: | Feb 12, 2008 12:20:31 PM

Why did the government appeal this case? Why did the government prosecute the Border Patrol agents? Why? Why? Why?

The government wants retroactive immunity for AT&T. President Bush gives Scooter a pardon because he thought the Guidelines were too harsh. I don't get it! The Constitution is being hijacked before our very eyes!

Posted by: Stanley Feldman | Feb 12, 2008 12:29:09 PM

I guess I am in the minority here, but the defendant would have had to have dealt over 500 grams of powder cocaine in order to get a mandatory five year sentence. This isn't a crack case where very little drugs gets you that sentence. I hope you lose the case. It bothers me that someone that should know better is putting 500 grams of drugs on the streets of America and gets a slap on the wrist!

Posted by: | Feb 12, 2008 12:29:30 PM

How are you going to respond to the allegations that giving people “credit” for military experience will mean that gangs will simply recruit veterans?

The law *now* allows district courts to consider military service, no? As I understand the degree of discretion that district courts now have, as long as the district courts aren't irrational about it (e.g. consider military service as it relates to the objectives of punishment, not as a sort of freebie coupon for jail time), they can consider military service. I *think* that's fairly uncontroversial.

The Supreme Court would probably be more interested in whether the Eleventh Circuit properly construed the rule and if so, whether its construction comports with Due Process (either generally or as applied here).

My gut says that this guy should be let go, but I wonder if the law allows it.

Posted by: | Feb 12, 2008 12:30:10 PM

Prof. Berman: Is Lett on bond pending appeal? If so, the cert petition is the right way to go for now. If not, I'd consider forgoing the cert petition in favor of a slam-dunk 2255 IAC claim. Even if cert were granted, Lett shouldn't have to sit in prison while the case is litigated in the Supreme Court.

Posted by: apellate AFPD | Feb 12, 2008 12:53:50 PM

"I guess I am in the minority here, but the defendant would have had to have dealt over 500 grams of powder cocaine in order to get a mandatory five year sentence. This isn't a crack case where very little drugs gets you that sentence."

Actually, this was a crack case. He made four small deliveries over the course of a month before voluntarily withdrawing.

Posted by: | Feb 12, 2008 1:03:43 PM

He's not on bond pending appeal. He received a time-served prison sentence of 11 days. He's presently on supervised release. (He's not yet been resentenced to 60 months as ordered by the appellate court). A cert petition may or may not postpone resentencing. The district court has discretion to resentence him immediately or wait on the Supreme Court's disposition of the cert petition.

Re the drug quantity issue - He was charged both with conspiracy to distribute crack cocaine and distribution of crack cocaine. He pled to distribution and thereby avoided the 10-year statutory mandatory minimum he would have faced had he been convicted of the conspiracy. The trial lawyer mentioned in the NY Times article probably thinks he negotiated a great deal. Prosecutors in the Southern District of Alabama don't often allow a defendant charged with conspiracy to plead to distribution unless the defendant is cooperating, i.e., is prepared to testify against co-conspirators or others. So I can see why the trial lawyer is angry that he is being criticized. However, the trial lawyer did miss the safety-valve issue. That issue was winnable in the district court, and this whole mess would have been avoided. The time-served sentence likely would have been affirmed as reasonable on appeal had there been no procedural hurdle (the Rule 35 issue). The safety-valve error, assuming it is error, is not a "technical" error under Eleventh Circuit law (and the law of every other circuit that I'm aware of). Thus, it is "other clear error" under Rule 35 or bust. There is a colorable IAC claim against the trial lawyer that should be raised via 2255 later.

Posted by: defender | Feb 12, 2008 1:28:11 PM

Why is there so much confusion about mandatory minimum sentences?

Mandatory minimum penalties are fixed by statute before the fact to forestall conduct of a particular kind. At that time nothing is known about potential offenders. General deterrence is the objective. Penalties are mandatory. They have fixed boundaries and a closed texture. They are definitional, Aristotelian concepts. In Sergeant Lett’s case, Congress established a penalty before the fact to deter the sale of drugs.

A punishment range is also established before the fact. A specific punishment cannot be set, however, because it is dependent upon a wide range of facts that will not be known until after the fact. Punishment is designed to hold offenders accountable, based upon the circumstances that are unique in that case. Punishment is discretionary within a range. It is a relational concept, with an open texture and fuzzy boundary.

In other words, penalties and punishments are responses to different kinds of provocations. First, the person’s conduct was a crime, which results in a mandatory penalty. Second, that crime was an offense, or criminal offense, which results in discretionary punishment that must be set within a range. These two provocations are compositional, as cognitive scientists would say. That is the concept crime can be put inside the concept criminal offense. Without a crime there can be no criminal offense. Conduct that is a crime, but not a criminal offense is what lawyers call a “strict liability” crime.

One of the many problems with the Federal guideline system is that it mixes apples and oranges.
A well-constructed sentencing system should accommodate both of these objectives.

Penalties and punishments are deprivations. That deprivation that is most restrictive should control at any given point in time. In Sergeant Lett’s case, that would have to be his mandatory penalty. Threatened penalties have to be enforced; otherwise they are not credible and ineffective. Of course, there is a very real question about whether threatened penalties are cost-effective, but that is a question of public policy.

Posted by: Tom McGee | Feb 12, 2008 2:23:03 PM

defender: Thx for the clarification. I agree that so long as he's out, the cert petition is the way to go. But if he does get re-sentenced and put back in, a 2255 should be filed ASAP even if it means having to withdraw the cert petition.

Posted by: apellate AFPD | Feb 12, 2008 2:27:53 PM


The issue in this case is that the same legislative body that created these mandatory minimums also created a "safety valve," by which defendants who meet certain conditions are exempt from the mandatory minimums. The question is whether that exemption clearly applies to Lett.

Posted by: | Feb 12, 2008 2:55:38 PM

What I find unbelievable is that Lett's original defense attorney, according to the NY Times article, apparently believed that Sgt. Lett should have been happy with the 5-year sentence and that the law student's letter was, essentially, a pest who should have minded his own business. (see the article for the nasty email he sent the kid).

He still maintains that attitude today, as the article also shows.

Unbelievable. It's the most transparent CYA I've ever seen from a lawyer who clearly provided ineffective assistance to his client.

Also, why not make a pardon request? Even the most cynical pardon attorney would see some merit here, given the military veteran angle.

Posted by: td | Feb 12, 2008 3:24:40 PM

This raises some issues of what it means to be “effective” counsel. Lots of people on here prattle on about how people are not entitled to “the best” counsel but rather a good defense. They don’t put much thought into this.

The problem is that in every jurisdiction cases are handled according to some procedure. This isn’t necessarily bad. In many ways a “procedure” or “some norms” can favor defendants. These norms also force prosecutors into developing policies that rank some crimes as being worse than others. (To civil litigants, however, every cause of action is the worst thing ever. This probably explains why civil litigants can be less reasonable than prosecutors.) So, I am all for “norms.” And there, I said some nice things about prosecutors.

There are two results to this. First of all, most lawyers have exceptions about how cases will turn out. Many times these expectations are informed by appellate opinion. Discussions between the parties are conducted based on these expectations. A lawyer will then explain these expectations to his clients. The problem is that sometimes these expectations are based on a reading of the authority that is shaky, or has been called into question in a way that people do not yet realize. I believe that this is what happened in this case that another poster calls “CYA.” Sometimes (in rare cases) judges discourage people from making some arguments (as in the 5th Circuit), but this is definitely rare.

One problem with criminal practice is that many defendants have a right to appeal (i..e. ones that didn’t waive it in a place that you can waive your right to appeal). This means that unlike civil cases, tax matters, or administrative matters, bad cases will be making most of the law. It is only when there is discretionary review (or some kind of screening process – like the “unpublished” v. “published” dichotomy) that the cases with the salient facts can be used to create the “good” law.

Posted by: S.cotus | Feb 12, 2008 3:48:10 PM

Whatever "ineffective" assistance is, the failure to mention a safety-valve downward departure given the Judge's "ma[king plain" that he wanted to somehow go below the 5-year minimum, is ineffective.

The lawyer's current assertion, that the 5-year sentence was a "gift" to the defendant, flies in the face of the judge's own words at the sentencing. Even if the 5 years was the most likely outcome, the game changed when it became clear that the judge viewed the 5-year minimum as a handcuff. That attorney (who snidely told the law student that he had 20 years' experience) either didn't know about the statute, or failed to realize its importance.

Very hard to come to any conclusion that a reasonable lawyer wouldn't have made the argument in the situation. Hell, a 2L had enough sense to see it. Yes, it is CYA at this point, and disgraceful.

Posted by: td | Feb 12, 2008 5:30:09 PM

td (and others), I'm curious about whether seeing the entire exchange (letter from law student, full e-mail from defense counsel) would provide some context. The quote by itself makes the guy sound like an ass.

In his defense, though, as some have pointed out, when a defendant is criminally liable for that much crack, he's often looking at much more than five years. His defense trial counsel may have had to do some good work just to focus the judge's mindset on the minimum, rather than on some higher sentence. The Guidelines put him at 70-87 months (5y10m to 7y3m). Lett's counsel was appropriately candid with the court in stating that there weren't any solid constitutional arguments against the 5-year minimum sentence. For the safety valve, it's right there in the statute, but the prosecutor, the Probation Office and the judge all missed it... When Lett's counsel went home after sentencing, Lett's counsel probably figured that he had gotten Lett somewhere between 10 and 27 months of freedom because of his lawyering.

Even so, unless Sinor's letter said something rude or derogatory about Lett's counsel, the reaction seems stupid. Sinor found an argument that (at the time) saved his friend from having to spend five years in prison. Under those circumstances, the feelings of a defense lawyer who should have found it on his own are irrelevant.

But maybe there's more to the story. There often is...

Posted by: | Feb 12, 2008 6:09:43 PM

"In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele." (emphasis added).

Since when is the 11th Circuit located in New Orleans? I realize the 11th circuit came from the loins of the 5th Circuit, which is located in New Orleans, when the 5th circuit was divided. But that was in the early 1980's.

Posted by: bruce | Feb 12, 2008 6:30:28 PM

The New Orleans part is an error, probably attributable to the fact that Lett was working in Louisiana at the time of his arrest.

Posted by: | Feb 12, 2008 7:12:12 PM

Not that it really matters, I'm certain the 5th Circuit would have ruled against Lett just the same as the 11th did.

Posted by: bruce | Feb 12, 2008 10:23:06 PM

I am certified by the State Bar of California as a specialist in criminal law. I have been practicing for 36 years and have tried over 300 state and federal jury trials. As I was reading the article I immediately thought what kind of a Judge would not know of the safety valve exception to the Federal minimum mandatory laws. I also was aware of the limitation, expressed by the Circuit Court, on the ability of the Judge to modify the sentence. Lastly I wonder what kind of prosecutor would appeal the sentence as modified.
Then I reflected on my experience that has taught me what a mean spirited county we have become when it comes to crime and punishment. There are a thousand ways the Federal system can gobble up an individual who may have acted out in a way completely out of character with the rest of his/her life. Then there are hundreds of Federal Judges either too timid, mean or stupid to employ the few tools available to seek justice when available. Ironically it has been the Supreme Court that has slowly restored to the Judges some of the discretion not available since before 1987 to sentence with some since of proportion. Unfortunately most of the Judges are too afraid, even though appointed for life, to utilize the new exceptions carved out by the Supreme Court for fear of being chastised by Federal commissions set up to monitor sentencing departures. The Federal Courts remind me of the monster movies I watched as a child. Whenever one monster was eliminated several would appear to take its place. Every time a Federal Judge has resigned in protest to the Federal Sentencing scheme there are a thousand lawyers standing in line to take his/her place to suckle at the Federal trough and do Congress' or the Sentencing Commissions mean spirit bidding.

Jan Edward Ronis

Posted by: Jan Edward Ronis | Apr 9, 2008 12:50:45 AM

Yea, I hope you win..

Posted by: Japanese Translator | Sep 15, 2009 8:07:58 AM

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