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February 12, 2008

The cert petition in US v. Lett (and amici encouragement)

I reported in this post this morning that today we filed a cert petition in the remarkable case of US v. Lett (which was the topic of this column in today's New York Times).  I can now post a copy of the filed petition, which has this Introduction:

Federal district courts impose more than 65,000 felony sentences every year. Inevitably, sentencing judges occasionally commit reversible legal errors in imposing these sentences. Acknowledging that reality, the Federal Rules of Criminal Procedure expressly afford sentencing judges an efficient means (rather than awaiting appellate reversal) to correct such errors when caught quickly.  Rule 35(a) provides that “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.”  Here, the district court did just that.  Based on a misunderstanding of the applicable statutory minimum sentence, Judge William Steele at first mistakenly concluded that he was unable to sentence  petitioner Patrick Lett to less than five years’ incarceration for a minor, non-violent drug offense.  Recognizing within the Rule 35 time period that he had erred in determining the sentencing range, Judge Steele corrected his legal error and imposed a lawful (and lower) sentence according to the terms of 18 U.S.C. § 3553(a).

The Eleventh Circuit reversed, holding that the district judge’s conscientious effort to correct his sentencing mistake was improper because the Judge’s legal error did not constitute “other clear error” for purposes of Rule 35. In doing so, the Eleventh Circuit adopted an unduly restrictive view of “other clear error” that undermines Rule 35’s ability to allow efficient corrections to legally erroneous criminal sentences.  The decision below thus threatens the effective and just operation of the criminal sentencing system, an issue of substantial federal importance given the tens of thousands of sentences entered every year in U.S. District Courts.

Compounding the need for review, the court’s decision also conflicts with settled law in other circuits. All courts agree that Rule 35’s purpose is to allow a trial judge to avoid the need for appeal where the result of that appeal will be a reversal for resentencing. Rulings from the First, Second, and Ninth Circuits have correctly concluded in comparable settings that any time that a sentencing judge operates under a legal misunderstanding as to applicable sentencing options, such a mistake necessarily constitutes reversible error requiring resentencing (and thus is the type of error allowing correction under Rule 35). The court below in this case, by contrast, concluded that not all such sentencing errors amount to “clear error” allowing for correction through Rule 35(a). Rather, according to the Eleventh Circuit, an error regarding the judge’s sentencing authority will be “clear” (and thus subject to efficient correction in the district court) only if binding precedent in a factually indistinguishable case plainly reveals that error.

Finally, the Eleventh Circuit also adopted a novel and misguided “remedy” in the wake of its flawed Rule 35(a) interpretation. It ordered the District Court to impose the initial, erroneous five-year prison term — notwithstanding Judge Steele’s conscientious (and unreversed) determination that he had committed error in imposing that sentence, as well as Judge Steele’s express finding that only a much shorter prison term was “sufficient but not greater 4 than necessary” to serve the sentencing purposes Congress set out in 18 U.S.C. § 3553(a).  Nothing in the language of Rule 35 or any other statutory provision justifies the Eleventh Circuit’s order that the district court now impose a legally erroneous sentence on Patrick Lett.

The Eleventh Circuit’s strained interpretation of Rule 35 reverses a “just determination” in this case, while also disrupting Judge Steele’s efforts to achieve “simplicity in procedure and fairness in administration,” and to “eliminate unjustifiable expense and delay.”  See Fed. R. Crim. P. 2. Because the Eleventh Circuit’s ruling creates confusion that will lead to unjust and/or conflicting results in lower courts, this Court should intervene to provide needed guidance as to what constitutes “clear error” under Rule 35(a).  Patrick Lett respectfully urges the Court to grant certiorari and reverse the decision below.

Download lett_cert_petition.pdf

Though we have strong arguments for Supreme Court review, the statistical reality is that less than 1% of all cert. petitions are accepted by the Court.  Consequently, I can state with confidence that Sgt. Lett (and his lawyers) would be happy and eager to have those aggrieved by this case consider filing an amicus brief in support of our cert. petition.

February 12, 2008 at 06:41 PM | Permalink


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This sounds like a great case for pardon, if the pardon's office wasn't such a mess, or the SG to concede error.

Posted by: | Feb 12, 2008 8:34:08 PM

What error would the SG concede? I'm curious about how solid the footing is for the safety valve theory.

Posted by: | Feb 12, 2008 8:44:55 PM

I am a NY defense attorney.

Why don't you immediately file a 2255 petition, alleging ineffective assistance of counsel (for, among other things, neglecting to seek -- or even consider, apparently -- safety valve treatment). Counsel's ignorance of this avenue of relief surely invalidates the sentence, as well as the validity of the plea itself.

Posted by: david wikstrom | Feb 13, 2008 7:00:10 AM

Look for exceptions and you will usually find a legal fiction. The so-called safety-valve rule is a legal fiction. It was invented to mix apples and oranges. Of course, legislators and judges invent legal fictions when they don’t understand the problem. I doubt that the Supreme Court will accept this case because they don’t understand the problem either.

Posted by: Tom McGee | Feb 13, 2008 8:36:04 AM

Mr. Wikstrom, I think the 2255 angle was discussed in another thread. Sgt. Lett is currently not in prison. http://sentencing.typepad.com/sentencing_law_and_policy/2008/02/the-amazing-fed.html#comments

If you read the Eleventh Circuit opinion, you might reevaluate the strength of an ineffective assistance motion.

Posted by: | Feb 13, 2008 9:13:17 AM

I'm a big fan, and I'm a criminal-defense attorney, but I don't believe that your treatment of 18 U.S.C. 3553(f) was entirely candid in the cert. petition. In the Petition at 7, you write, "[U]nder the terms of 18 U.S.C. 3553(f), Judge Steele was authorized by Congress to impose a sentence 'without regard to [the] statutory minimum sentencing terms' of 21 U.S.C. 841." In Section 3553(f), however, Congress did not authorize ANY sentence below the statutory minimum. Instead, Congress authorized only "a sentence pursuant to the guidelines promulgated by the United States Sentencing Commission." In Lett's case, therefore, Congress in Section 3553(f) only authorized a Guidelines sentence which is MORE than 60 months.

All those who castigate Lett's attorney for securing a 60-month sentence in this case need to honestly evaluate whether Congress approved any "safety valve" sentence below the Guidelines sentence in Section 3553(f). If the answer to this questions is "no," then Lett's attorney did a great job.

In our euphoria over Booker and Gall, we need to remember that Booker and Gall have NOT eliminated statutory minimum sentences. The "safety valve" in 3553(f) does not now mean, after Booker and Gall, that the statutory minimum sentences have been replaced by greater district-court sentencing discretion. A fair reading of the statute shows only that statutory minimum sentences have been eliminated: 1) WHEN A GUIDELINES SENTENCE IS LOWER THAN THE STATUTORY MINIMUM; and 2) when the safety-valve preconditions have been met.

Of course, I don't want to chill anyone's advocacy on behalf of Mr. Lett, but it appears to me that the language of 3553(f) is an obstacle to establishing ineffective assistance of counsel. It was a judgment call on Lett's attorney's part to determine whether the benefits of securing a 60-month sentence outweighed the benefits of trying to get the federal courts to elide the "shall impose a sentence pursuant to the guidelines" language of 3553(f).

In my opinion, the district judge's primary error was his failure to give effect to Congress' "shall impose" language in section 3553(f). The Court of Appeals got the Rule 35 issue right, although for arguably the wrong reasons.

Regardless, best of luck on the cert. petition and/or in any 2255. But I fear that the law student in the district court, and the attorneys in the cert. petition, have played a little fast and loose with the exact language of Section 3553(f).

Posted by: Mark | Feb 13, 2008 10:24:57 AM


A sentence "pursuant to guidelines" is, after Booker et al, a sentence pursuant to advisory, not mandatory, guidelines. If the statute had been written today, there'd be no doubt that a sentence "pursuant to guidelines" need not fall within Lett's 70-87 month Guidelines range. A textualist reading of the statute's plain meaning therefore allows for a below-Guidelines sentence for Lett. What makes this case difficult is that it is *perhaps* an instance where the text of the statute is NOT the best indicator of the intent of the enacting Congress, meaning that a court would have to decide whether, and on what grounds, it could modify traditional principles of statutory interpretation in this case.

Posted by: Chris | Feb 13, 2008 11:59:16 AM

Mark, it was well established by other circuits and in commentary from the US Sentencing Commission that, even before Booker, a Section 3553(f) safety-valve eligible defendant could through a tradition departure could end up with a sentence below the mandatory minimum even if the pre-departure guideline range was above the mandatory minimum. See the USSC FAQ here:

Moreover, if the Eleventh Circuit agreed with this view, it could/should have simply said that Judge Steele erred by correcting something that was not an error. However, that was not the basis for the 11th Circuit's ruling and, even more troublingly, the 11th Circuit has refused even to take up this issue despite now having ordered a 60-month sentence for Lett.

Posted by: Doug B. | Feb 13, 2008 12:36:37 PM

Chris writes: A sentence "pursuant to guidelines" is, after Booker et al, a sentence pursuant to advisory, not mandatory, guidelines. If the statute had been written today, there'd be no doubt that a sentence "pursuant to guidelines" need not fall within Lett's 70-87 month Guidelines range.

Really? If the statute had been written today, it would make little sense. This demonstrates how irresponsible remedial Booker was. "Pursuant to the Guidelines" means 70-87 months (or more or less, pursuant to a Guidelines-based departure, as Prof. B. points out). If a judge uses his Booker discretion to give a different sentence, that's not a sentence "pursuant to the Guidelines."

I think Prof. Berman's 12:36 is the answer to the questions about the "was it actually an error" question. There's much to be said for judicial minimalism and not deciding more than is necessary, but it seems to me that the Eleventh Circuit should have addressed that question.

Under the Olano plain error line of cases (which, the CA11 points out, is distinct from Rule 35 "clear error"), there's some room for saying that a legal error isn't "plain" if it's arguable, but the CA11 panel didn't really explain why it thought the question was "arguable" here.

Posted by: | Feb 13, 2008 12:57:33 PM

"A fair reading of the statute shows only that statutory minimum sentences have been eliminated: 1) WHEN A GUIDELINES SENTENCE IS LOWER THAN THE STATUTORY MINIMUM; and 2) when the safety-valve preconditions have been met."

Whether 1) must still be satisfied after Booker is exactly the underlying "merits issue" in this case. (And is the issue that Prof. Berman is arguing at 12:36). It does not appear that the 11th (or any other Circuit) has squarely addressed the issue. As a result, it may be difficult -- but certainly not impossible -- to establish the first prong of Strickland in a 2255 motion. (Note, the second prong is clearly established by the dist. ct's lower sentence after 3553(f) was pointed out to it.). The cert petition on this Rule 35 issue is, thus, a wise move.

The CERT petition seems to assume that the judge committed legal error. See the first sentence of the Question Prsented. But that begs the “merits issue.” The 11th did not answer the "merits" question but instead held that even if there was error, it does not constitute "other clear error." (I agree the 11th should have addressed the issue, but because they did not, that alters the cert issue).

It seems to me that the issue for the Court, therefore, is not about an "admitted misunderstanding" of statutory sentencing authority or about an unquestionably "legally erroneous" sentence. Rather, the issue is (not as artfully stated as I would put in a brief): If a dist. ct. believes he imposed a legally erroneous sentence, does that judge need indistinguishable circuit precedent in order for there to be “other clear error” under Federal Rule of Criminal Procedure 35(a).

Posted by: DEJ | Feb 13, 2008 1:22:41 PM

I agree with DEJ's description of the "merits" issue that he sees (I was pointing it out myself), and I agree with him that the cert. petition too easily glosses over that merits issue.

Doug, the Sentencing Commission's FAQ discussion that you cite in your post is problematic for you, I believe, because the Sentencing Commission's citation of authority for the proposition "no mandatory minimum exists when the safety valve is applicable" is "3553(b)." After Booker, any reliance on 3553(b) for any proposition of law is suspect. You indicate that numerous courts have decided that the safety valve in 3553(f) completely overrides any statutory minimum sentence, implying that a district court can sentence a defendant to any sentence that the district court deems appropriate if the five basic conditions for the safety valve are met; I hope that you have some post-Booker decisions, where the applicable Guidelines range (including the Guidelines' own safety-valve reduction) is higher than the statutory minimum sentence, to support that argument. DEJ asserts that no such cases exist, and I am aware of none.

Of course, Congress' intent regarding statutory minimum sentences when the Guidelines are now merely advisory is the ultimate subjunctive question. I wouldn't bet on Congress ever passing 3553(f) if the Guidelines have no more teeth than they now have after Booker/Kimbrough/Gall. So it will take some real judicial fancy dancing to explain how a sentence that is below both: 1) the statutory minimum sentence AND 2) the applicable Guidelines range is a sentence authorized by Congress. I'm sure that it can happen, but I question whether such an approach is sufficiently respectful of Congress or the Rule of Law.

Again, best of luck.

Posted by: Mark | Feb 13, 2008 1:52:26 PM

Here's an important/key point, Mark: because the 11th Circuit avoided answering the underlying "error" issue, we cannot attack its determination any other way than by assuming there was error. of course, the only "ruling" on this issue was Judge Steele's when he corrected under Rule 35(a) the error he identified. Unless and until a higher court contradicts that clear ruling by Judge Steele, I think I am duty bound to accept that determination and litigate this case accordingly.

Put differently, we had to "gloss over that merits issue" in the cert petition because the 11th Circuit forced us to do so through the nature of its ruling. As you will see, the cert petition includes a QP that says that this very glossing is itself a problem that SCOTUS should correct through a grant and review.

Posted by: Doug B. | Feb 13, 2008 8:42:30 PM


I'm with you. Best of luck.

Posted by: Mark | Feb 14, 2008 1:17:20 PM

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