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March 25, 2009

Another (unsurprising?) SCOTUS defense loss

I am road-blogging to note that the Supreme Court this morning handed down Puckett v US concerning plea breach remedies. SCOTUSblog has the details and links, and I hope to have comments tonight.

UPDATE: The full opinion is available at this link.

March 25, 2009 at 12:04 PM | Permalink


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I hope to have comments tonight

Looking forward to it. When the Supreme Court splits on a criminal issue, my sympathies are more often with the "conservatives." In this case, though, I thought Justice Souter's dissent was compelling and I was surprised to see that it didn't pick up at least 2 more votes, if not 7 more.

Posted by: anonymous | Mar 25, 2009 12:19:44 PM

Disappointing case. The reality is that overworked defense attorneys often inadvertently miss things at the trial level. Lots of stuff is going on, and sometimes you just understandably fail to object. (As an aside, the insinuation of sandbagging is insulting and could only be levied by someone who has never been a criminal defense attorney.) So, in the end, in the name of “saving judicial resources” -- and it is not clear to me that there is any real savings here -- defendants spend years more in jail than they should. Liberty erroneously lost at taxpayer expense.

Posted by: blah | Mar 25, 2009 1:07:03 PM

blah, you certainly have an interesting perspective

First of all, a plea agreement (generally speaking anyway) reflects a compromise between the prosecutor and the defendant--and so the sentencing result is not a proxy for what the defendant actually deserved.

Second of all, and I am just curious, do they name street signs after you? Your sympathy for busy lawyers seems to go ONE WAY (as in the street sign). It certainly is possible here that the government lawyers could forget certain provisions of the plea deal.

Third of all, the courts have a duty to make sure that there are no incentives to "sandbag" a court. Scalia wasn't accusing the defense lawyers in this case of doing that.

anonymous, I am curious why you thought Souter's opinion compelling. The bottom line is that, at a minimum, all this guy could have hoped for would be to have his sentencing redone with the government ordered to recommend the acceptance of responsibility departure.

Posted by: federalist | Mar 25, 2009 1:52:25 PM


One way to tell that you have failed to deliver a one-liner correctly is when you have to circle back to it in a parenthetical in the next line to make sure people get it. Stick with just being reflexively conservative, and leave the humor and wit to others.

Posted by: A. Nony. Mous. | Mar 25, 2009 3:06:40 PM

Is "conservative" really the operative term for the political theory that federalist purports to represent?

Posted by: Mark | Mar 25, 2009 3:16:26 PM

come on guys, dispute my points--ad hominem is just so easy . . . .

I know it's hard. But you actually have to think, rather than reflexively sloganeer.

Posted by: federalist | Mar 25, 2009 3:21:04 PM

"But you actually have to think, rather than reflexively sloganeer."

This is too rich. I'll just leave it at that.

Posted by: blah | Mar 25, 2009 3:47:29 PM

On the contrary, blah, my response, while predictable, is not sloganeering. It seems you cannot answer it.

Posted by: federalist | Mar 25, 2009 4:04:45 PM

One remedy for breach of contract is specific performance. Another is to unwind the contract and return to the status quo ante. There is no reason to back off Santobello and prefer the former to the latter simply because defense counsel failed to make an on-the-record objection at the time of sentencing.

Puckett's plea should have been vacated.

Posted by: Jay Macke | Mar 25, 2009 4:44:27 PM

Wow. It's a lot of hyperventilating for case the SC shouldn't even have taken. Seriously, Souter lost me in the first paragraph. Even he admits that had the decision gone his way, it was unlikely to have changed the man's sentence at all: "(as to which the error here probably made no ultimate difference)". So why even deal with it: "but the Court’s holding will stand for a rule in circumstances less peculiar than those here." This is nothing but useless hand wringing akin to Scalia's "oh gosh the terrorists are gonna bomb us" Chicken Little nonsense. Why does every dissent have to either parade a catalog of nefarious horrors or claim the sky is going to fall in because of what the majority did. It makes the court look stupid.

I can only shake my head in disbelief. This was a federal case? Overlawyered indeed.

Posted by: Daniel | Mar 25, 2009 5:05:20 PM

Why should it have been vacated? First of all, Puckett likely violated an implied agreement to keep his nose clean post-conviction. Second of all, and more to the point, why is there any reason to depart from the plain error rule? We require attorneys to object for a reason. When they don't, there's a much higher standard of review. Why should this be treated any differently from any other error?

Posted by: federalist | Mar 25, 2009 5:08:36 PM

Daniel, part of the job of the Supreme Court is to deal with splits in the circuits. That happened here, and the Supreme Court gave an answer. They should be doing more of this, not less.

As for Scalia and terrorists, well, he may just be right. Eric Holder, continuing in his zeal to help terrorists and other assorted scum, has stated that some of the GTMO guys may be released into the United States. If one of them commits a terrorist act, Scalia's worry may come home to roost. And if it does happen, you can bet your bottom dollar that Obama will pivot and blame the court for creating the need to deal with the GTMO detainees.

Posted by: federalist | Mar 25, 2009 5:31:24 PM

It's not that this should be treated differently from any other error, but that different kinds of errors should be treated differently. The prong of Rule 52(b) that was at issue isn't "would the defendant have been sentenced differently," it's "did the error affect substantial rights." The right to stand trial, the right to present witnesses, all of the things that a defendant waives in a plea bargain -- those are substantial rights. The Court said as much in Dominguez-Benitez, but it threw that away here for a sentence-only inquiry. I would have thought the rule would be: if you can show that you wouldn't have pled without the guarantee, your rights have been affected and you can rescind the plea deal and go to trial. I'm surprised more Justices didn't see it that way, and I'm surprised the dissent focused on a generic due process argument.

Posted by: tad | Mar 25, 2009 5:46:34 PM

But tad, why would we see it that way? When evaluating a contract, you don't ask whether the guy would have entered into it if he had known the other guy wasn't going to live up to it. Further, his plea agreement could have simply been honored by him getting an untainted sentencing hearing. The plea agreement is void seems to have very little to show for it, other than a fetish for hypercorrectness.

Posted by: federalist | Mar 25, 2009 7:03:30 PM

Why does every dissent have to either parade a catalog of nefarious horrors or claim the sky is going to fall in because of what the majority did. It makes the court look stupid.

Daniel, perhaps you're familiar with a term called "precedent." In the course of rendering a decision, the Supreme Court often explains the legal principle that led to the decision. Sometimes that principle is broad and sometimes it's narrow.

Courts of appeals are bound by the Supreme Court's decisions, and if the Supreme Court has established a legal principle in a case, courts of appeals have to follow it in other cases if it's applicable.

Thus, if the Supreme Court says in one case that Washington state's sentencing guidelines are unconstitutional, and the principle they set out is that sentencing laws are unconstitutional when they allow a defendant's maximum sentence to be increased on the basis of facts neither admitted by him nor proven to the jury beyond a reasonable doubt, then it's legitimate for dissenters to point out that there are other factual scenarios out there to which the newly-articulated principle might apply.

It's hardly an apocalyptic/hyperbolic parade of horribles to say that when the Supreme Court allows the government to breach its plea agreement in a case with an unsympathetic defendant, it is creating a precedent that might apply in other cases with sympathetic defendants in a way that would give the majority pause.

Posted by: anonymous | Mar 25, 2009 7:27:17 PM

How come no one is talking about how often DEFENSE ATTORNEYS breach plea agreements by arguing for a sentence lower than the one to which they stipulated, and by filing notices of appeal and challenging the sentence despite a clearly applicable appellate waiver?

Posted by: Da Man | Mar 25, 2009 7:35:48 PM

For the same reason, Da Man, that a defense attorney can know for a fact that his client committed the crime and then say to the jury that "someone else could have done it" and not be subject to discipline.

Posted by: federalist | Mar 25, 2009 8:28:08 PM

Or maybe, just maybe, the process of a criminal trial, with all of its rigorous structural facets, is meant to protect persons against the overarching power of the government. Just as the Constitution and its Amendments serve to restrict the contours of governmental power over its citizens. You see, it's not supposed to be equal; that's why we have the presumption of innocence, guilt beyond a reasonable doubt, and all those other "impediments" to untrammeled government dominance over its people. For the Founding Fathers--like all patriots--valued the individual over the state. They have a name for boot-licking government-lovers--but you already know that and have most likely heard it many, many times; which is most likely your goal by posting here anyway.

Posted by: Mark | Mar 25, 2009 10:42:07 PM

Now now Mark, time to take those meds.

Posted by: federalist | Mar 26, 2009 9:39:26 AM

federalist: We do ask whether the person in the contract would have entered into it. It's called "materiality." If I breach our contract, you get to get out of it if my breach is material -- if you're getting something substantially different from what you signed up for. Sentencing reductions that are available only when defendants plead (like the one in Puckett) are premised on the idea that they induce defendants to agree to plead and save the government time and money. So the Sentencing Commission sees them as presumptively material; why shouldn't courts? Then it's a straightforward contract question. The only issue is remedy, where you're right, you could argue for a new hearing on the same plea. But that's not what the Court held.

da man: Most plea agreements specifically allow defendants to appeal their sentences if they're outside a certain range, so appealing judicial decisions outside the agreed-upon range is no kind of breach. And I don't think too many plea agreements restrict the defendant's right to argue for leniency before the sentencing judge -- you can say that's bad prosecutorial policy, but it's not misconduct on defendants' or defense lawyers' part.

Posted by: tad | Mar 26, 2009 10:52:30 AM

tad, the bottom line is that a resentencing hearing in front of another judge would have given this guy what he bargained for.

And no we don't ask that question. You look to see if there's a contract, then whether there's been a breach and then what remedy. Now sometimes, the first question leads to the conclusion that no valid contract existed (e.g., fraud). But that's not what's claimed here.

Posted by: federalist | Mar 26, 2009 12:48:03 PM


Perhaps you should actually do some legal research, too, after you take your medication. You will see that the Third Circuit, for instance, allows the Government to appeal a sentence and have a case reassigned to a different judge when the defense attorney breaches the plea agreement by arguing for a sentence lower than the one to which he stipulated.

Sauce for the goose.

Posted by: Da Man | Mar 26, 2009 4:20:10 PM

Appreciate the heartfelt concern, but my thumbnail refresher of constitutional rights was in response to the implied argument that zealous advocacy should carry some sort of sanction for counsel where it is ultimately unsuccessful. As to the procedural nuts and bolts regarding an alleged appeal waiver in the Third Circuit, I will regrettably be forced to leave the details and study of that fascinating and gripping topic to those who regularly appear in that circuit.

Relatedly,and as an education for those who believe that they are "picking God's orchard" (direct quote from one of the people's lawyers) by using their bar card to lock other humans in cages, I have never once asked a client if he "did it."

Posted by: Mark | Mar 27, 2009 9:16:30 AM

"lock other humans in cages" . . .. well, that's one way to put it. Another would be to incarcerate those who have broken society's laws so that they cannot do it again . . . . at least for a while.

I'm guessing, Mark, that you're the kind of defense lawyer that would gleefully share witness' addresses with your hardened criminal clients.

Posted by: federalist | Mar 27, 2009 12:26:31 PM

No, I can recognize a bad guy. Unfortunately, our justice system does not get its appetite slaked with merely incarcerating bad guys who actually victimize others. I have no problem whatsoever incarcerating those we are afraid of--assuming a fair trial that comports with due process. My problem is the extended rotting we are all-to-happy to inflict on those we are only mad at (with credit for the paraphrase to the unknown author). I have multiple opportunities daily to examine the personal information of witnesses. I have never even been asked for such information by any of my clients; I imagine they can tell I wouldn't divulge the info so they don't waste the breath.
Upon further consideration, I doubt that ANY of the respected members of the defense bar would divulge that type of info; it's not too difficult to envision a nice neat conspiracy jacket that matches the client's were something to happen to a witness.
P.S.-As any attorney on either side will tell you--there's not much about the organized wreckage of humanity represented by a criminal docket that could ever lead one to "gleefully" do anything. . .

Posted by: Mark | Mar 27, 2009 11:42:54 PM

Well. mark, it's a pity not all of your cohorts share your scrupulousness. Many of them actually defend the practice.

Posted by: federalist | Mar 28, 2009 9:45:19 AM

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