« An effective (and telling) list of the "best blogs" discussing capital punishment | Main | Looking back playfully before looking forward to the new SCOTUS term »

September 30, 2010

Significant IAC ruling from Tenth Circuit based on counsel’s failure to understand guidelines

A split panel of the Tenth Circuit today handed down an interesting and important Sixth Amendment ineffective assistance of counsel ruling today in US v. Washington, No. 08-3313 (10th Cir. Sept. 30, 2010) (available here).  Here is how the majority opinion starts:

Petitioner Patrick E. Washington requests reversal of the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence, claiming the district court erred in not holding his counsel’s performance constitutionally deficient.  We conclude that counsel’s failure to understand the basic mechanics of the sentencing guidelines and, in particular, his failure to advise Mr. Washington regarding the impact of relevant conduct on his potential sentence prior to meeting with the probation officer, amounted to constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984).  We also conclude that Mr. Washington was prejudiced as a result of the above failures because the facts he conceded at his presentence interview disqualified him from obtaining a two-level reduction pursuant to the 2007 Crack Cocaine Amendments, U.S.S.G. § 2D1.1(c), App. C, Amend. 706, 711 (2007) (Amendment 706). We therefore reverse.

The heart of the dissent by Judge Tacha is evident from this paragraph of her opinion:

In Gordon, we joined our sister circuit courts in holding that “the presentence interview is not a critical stage of the [criminal] proceeding within the meaning of the Sixth Amendment.” 4 F.3d at 1572.  We therefore denied the defendant’s claim for relief based on ineffective assistance of counsel. Id.  Although the majority recognizes that Gordon is still good law in this circuit, it attempts to limit Gordon’s holding to the precise moment of the presentence interview. See Maj. Op. at 11–12. I cannot agree with the majority’s position.  Besides standing contrary to our clear language in Gordon, the majority’s limited reading creates an arbitrary distinction under which a defendant has the constitutional right to the advice of and information from his attorney before the presentence interview but does not have the right to such advice and information once the interview has begun.  Gordon, of course, makes no such distinction.

If the feds decide to pursue an en banc appeal or a cert petition, I would not be surprised if a number of addition judges or Justices want to jump in on these important issues.

September 30, 2010 at 01:20 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Significant IAC ruling from Tenth Circuit based on counsel’s failure to understand guidelines:


If Padilla from last term is going to be interpreted coherently with the rest of US legal process then I would say that this is the correct outcome. I see no basis for saying that Padilla is limited to immigration consequences. A presentencing interview is much closer to the heartland of the criminal proceeding than is deportation of an undesirable alien.

I will however question whether being adversely impacted by a truthful concession is actually prejudiced in the sense that Strickland is meant to protect against. I would think part of the plea interview process is an admonishment to be truthful and that evasion is not going to help the defendant. Under those circumstances (which may well be an incorrect starting point) I'm not sure what a defense attorney is supposed to tell the client. I would think advising the client to lie would open the defense counsel to an ethics investigation and I would think telling the client to take the 5th would jeopardize the plea.

Now, if the concessions were mistaken (as in the client not understanding what the interviewer was asking, not as in inadvertent), that I would think would be a matter for the defense counsel to challenge during the sentencing hearing and for the judge to decide the matter just like pretty much all the other issues.

Posted by: Soronel Haetir | Sep 30, 2010 5:01:58 PM

"I'm not sure what a defense attorney is supposed to tell the client."

The attorney should have told BOTH him and the probation officer not to discuss the conduct at issue in this case (or, at a minimum, not to discuss anything outside of what's in the plea). It's a routine advisement that clients follow, but more importantly, probation officers adhere to when requested.

"I would think telling the client to take the 5th would jeopardize the plea."

Declining to discuss the offense conduct with the probation officer is a common practice and never jeopardizes the plea.

Posted by: DEJ | Sep 30, 2010 5:20:15 PM

Of course, the better practice is for the attorney to always be there when the PO talks with the client. But, according to the opinion, it's settled in the 10th Cir. that there is no right an attorney during the probation interview.

Posted by: DEJ | Sep 30, 2010 5:22:52 PM

The lawyer may be sued by the client for legal malpractice. If he is, I would encourage the lawyer to file a cross claim against the authors of the guidelines. There is a duty in the guideline maker, to do no harm, and to write in plain English. If a professional cannot understand the rules, then the public will not be able to. Statutes that are written above the sixth grade reading level must be void for their failure to give adequate notice. Any statute reading about the sixth grade should be called negligent per se in statute drafting.

Posted by: Supremacy Claus | Sep 30, 2010 5:37:22 PM

The legal malpractice appears to be adjudicated here, with a judge determination of inadequate performance. All such decisions, of inadequate representation, are per se determinations of legal malpractice. All defendants are strongly urged to sue their defense lawyer after receiving such relief from an appellate court. As a result of lawyer carelessness, expensive appellate procedures have been required, and the defendant suffered damages in the form of potentially false incarceration.

Posted by: Supremacy Claus | Sep 30, 2010 6:10:18 PM

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