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April 4, 2018

The intricate realities of the drug war on full display in recent Seventh Circuit ruling on ineffective assistance of counsel in plea negotiations

A helpful reader alerted me to an interesting panel ruling by the Seventh Circuit handed down yesterday in Brock-Miller v. US, No. 16-3050 (7th Cir. April 3, 2018) (available here). The reader rightly noted that this opinion provides a thorough discussion of ineffective assistance of counsel in plea negotiations before ordering the district court to hold a hearing to explore claims of deficient performance by the defendant's lawyer.  I also found remarkable the case's accounting of how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.

Specifically, as the panel opinion explains, LeeAnn Brock-Miller pleaded guilty, "pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute heroin [resulting in] the agreed-upon sentence of ten years’ imprisonment."   What did she do to get this decade-long sentence?  According to the opinion, she was driving with three other men (one of whom it seems was her husband) on a highway headed to purchase 54 grams of heroin in Chicago; and according to sentencing testimony: "this car trip was an isolated incident, where she agreed to give the others a ride in exchange for one gram of heroin for herself.  Brock-Miller had an extensive criminal history that corroborated her claim that she did not sell drugs but was an addict who simply bought drugs for personal consumption."

Problematically for Brock-Miller, (1) that lone car trip allowed the Government to claim she was part of a drug conspiracy to traffic more than a kilo of heroin, triggering a possible 10-year mandatory minimum, and (2) she had a prior Indiana conviction for “Unlawful Possession of Syringes or Needles” which the Government claimed was a predicate drug felony under 851 that doubled her potential mandatory minimum term to 20 years in federal prison(!).  With the feds threatening this big hammer, the defendant here understandably was amenable to her defense counsel's advocacy to accept a plea deal that called for "only" a 10-year sentence.

But as the Seventh Circuit goes on to explain, the defendant's prior Indiana conviction was not actually a qualifying predicate to double her applicable mandatory minimum and she had a reasonable trial argument that not foreseeable was the "full kilogram of heroin charged in the indictment [for] someone who joined the conspiracy at the very end, in a deal involving only 54 grams."  In other words, the defendant had a winning legal argument that her mandatory minimum should not have been doubled, and a viable argument that she should not be subject to any mandatory minimum term at all.  Luckily for the defendant, a Seventh Circuit panel helped figure this out and the apparent ineffectiveness of her counsel may allow her to get resentenced in a more fitting way.

But I must conclude by stressing the dark cloud that overwhelms any Brock-Miller silver lining: the very possibility that "an addict who simply bought drugs for personal consumption" could be threatened with a 20-year mandatory minimum federal prison term reveals how dysfunctional and morally bankrupt our federal sentencing laws can be.  And I am quite certain that LeeAnn Brock-Miller is not the first person nor the last person to be chewed up by these laws; indeed, sadly, there are many thousands that have come before her, and likely many thousands still to come.

April 4, 2018 at 06:11 PM | Permalink


"But I must conclude by stressing the dark cloud that overwhelms any Brock-Miller silver lining: the very possibility that "an addict who simply bought drugs for personal consumption" could be threatened with a 20-year mandatory minimum federal prison term reveals how dysfunctional and morally bankrupt our federal sentencing laws can be. And I am quite certain that LeeAnn Brock-Miller is not the first person nor the last person to be chewed up by these laws; indeed, sadly, there are many thousands that have come before her, and likely many thousands still to come."

Doug, you almost have it. It's not the sentencing laws that are immoral--it's (in your opinion) how those laws are used by prosecutors. At the end of the day, the aiding/abetting/conspiracy liability has to be broad, and giving judges the ability to be nice has been shown to be a problem. Putting aside what appears to be an appalling injustice, this sort of prosecution/sentence undermines the confidence of the public at large in the criminal justice system.

Harsh sentences need to be reserved for serious criminality. For moral and practical reasons.

Posted by: federalist | Apr 4, 2018 8:09:40 PM

I am pleased to say that I fully concur with brother Federalist!!

Posted by: Michael R. Levine | Apr 4, 2018 9:23:20 PM

Mr. Behar silent for 30 days? I can breathe again. I concur with brothers Federalist and Levine.

Posted by: Emma from Ireland | Apr 4, 2018 9:25:51 PM

I have to agree a I see nothing in this about a bench slap for the asshole prosecutor who used illegal leverage to basically blackmail a 10 year conviction bon the woman.

Posted by: Rodsmith3510 | Apr 4, 2018 10:59:48 PM

Federalist, you nailed it.

Thats what I have against federal sentenceing, they hammer everyone with mandatories with the flimsiest of history. The feds say they need mandatories to break down cartels and huge drug rings. Ok then, only use them for these cases. Extremely rare of huge drug rings in smalleville USA.. Some in lRger cities of coarse, but not to extent feds say there is.

Also violent crime us not running rampsnt in America these days. Its just Trumps and Sessions ambitions to appear tough on crime. Same crap with building a wall around southern USA, it still will be breached, then we gave to maintain the behemeth.

A good 3rd grader can see thru most of these issues. Dismantle, education and trade prigrams for inmates, then fund 1.2 trillion for DOJ. Doesnt take Wiley E Coyotee super Genius to go figure on these items.

Good job Federalist, and rest if you for picking up what Federalist was putting down....

Posted by: MidWestGuy | Apr 4, 2018 11:17:04 PM

But the laws are part of the problem, federalist, because the lack of any safety valve in the application of MMs (as well as their severity) creates the conditions that can lead to (and prompt) their misuse.

I do always wish prosecutors were much more circumspect in applying these severe laws, but many prosecutors likely believe they are. The (Obama era) prosecutors in this case likely believed they were being "nice" by offering a plea to 10 years when they honest thought the applicable MM demanded 20 years. The laws themselves distort and pervert how prosecutors (and judges) see and seek justice, and the laws need to be profoundly reformed.

Posted by: Doug B | Apr 4, 2018 11:40:51 PM

In the opinion, the court noted that, at various points in its briefing, the government concedes that Brock-Miller's attorney made mistakes. For example, the government commented that "Brock-Miller offers a substantial argument that her lawyer made a real mistake." However, the government argued that "counsel's errors were not sufficiently egregious to meet the Strickland standard for deficient performance."

It appears that the government attorneys are fine with a lengthy sentence for the defendant even though they admit that the defendant's attorney made a real mistake. They thought that the errors were not "sufficiently egregious." From the government's perspective, apparently it was defendant's bad luck that her attorney made a real mistake.

Posted by: Elaine Mittleman | Apr 5, 2018 12:00:31 AM

Doug is absolutely right on this. The law is poorly constructed on sentencing and it will take considerable reform to make things better. But it's also hard to understand how prosecutors, or judges for that matter, fail to moderate their interpretations and inclinations in light of the stark and obvious injustice that is taking place. The one body that should be stepping in to limit these excesses and to give clarity to all concerned, is of course the Supreme Court. Law makers are politicians and many tend to look only to the headlines when proposing and passing new law. The Supreme Court should do its job to ensure where bad law is passed it is effectively scrutinized ... and if necessary modified to reflect the Constitutional protections of fairness and reasonableness.

Posted by: peter | Apr 5, 2018 8:52:19 AM

Gotta say I'm with Doug on this. A law which by design permits this appalling prosecutorial overreach is indeed immoral, and I won't give vent to the adjectives which describe Federalist and his view that conspiracy law needs to be broad enough to ensnare those who are not a part of a conspiracy, since in his view permitting the judge to be "nice" enough to get around this, either at sentencing or on Rule 29 motion is "a problem."

And one cannot claim this is an isolated incident, and the system "worked." How many others are there just like this? 400+ federal cases in my career permits me to opine that the best word is "countless." And, the instances are legion even though the legislative history of MM is amply clear that they were not to apply to this kind of case. Not that this would make a difference.

At bottom, we have a system which entrusts this sort of unlimited and nearly unreviewable discretion to a careerist prosecutor who passed no more than a job interview, and not a judge subjected to Senate confirmation, and it therefore is structured to produce precisely this kind of result. Hell, it was yet worse before the FSA and reduction of the crack numbers. But the hand-wringing by commentators and the bench tends to be focused more upon the unreasonable reach of the fraud guidelines, where defendants tend not to have the same motivation to be involved that a career addict like Brock-Miller had.

Posted by: miketrials | Apr 5, 2018 9:50:31 AM

"At the end of the day, the aiding/abetting/conspiracy liability has to be broad, and giving judges the ability to be nice has been shown to be a problem."

Even if I accept that as true, as this case illustrates, giving prosecutors wide description to be mean has also shown itself to be a problem. So unless "federalist" can find some miracle solution to turn prosecutors into a better class of men, it becomes an inescapable conclusion that the only way to fix the problem is to reform the law to limit prosecutor discretion. After all, this is the solution that we imposed on judges via the Sentencing Commission. So there is precedent.

Posted by: Jeeze o Pete. | Apr 5, 2018 10:42:32 AM

Agree with all of the above, and have seen such ridiculous uses of the MM hammer by prosecutors many many times. Primarily commenting here though to note how refreshing it is to read a comment thread not hijacked by trolls. (And even federalist refrained from ad hominen attacks.)

Posted by: career AFPD | Apr 5, 2018 10:58:36 AM

"ad hominem"

Posted by: career AFPD | Apr 5, 2018 11:00:06 AM

Mr. Behar silent and we already have a longish discussion. Correlation does not equal causation and all that, sure. Not sure how much that matters but we'll see long term.

The "judges the ability to be nice" concept is a bit off since -- disagree with them in specific cases -- they aren't really trying to be "nice" as much as trying to formulate a suitable sentence in a specific case. In various instances, a lesser one is deemed just.

The need for "harsh sentences" in certain instances is not disputed at all. The thing is that there is a range of possibles. At some point, as has been said, it is questionable if the height of the range is worthy of the risks.

We will be left with numerous cases of oversentencing (though some will think that happens less, such as someone here who thinks most felonies might be capital in nature, to take an extreme case) that even fairly strict minded sorts will find to take a possible adjective "distressing" but sigh, we need it to punish the horribles.

But, the specific situation here is "an addict who simply bought drugs for personal consumption" getting a twenty year maximum. When is that even warranted? A few cases? Is that, even granting it, worth the risk of misuse in more numerous cases? And, the alternative won't be probation or something [though we can have whole debate over drug policy, of course] in most cases.

Posted by: Joe | Apr 5, 2018 11:38:17 AM

And I only disagree with this from a cost standpoint, not the outcome itself. 10 years of imprisonment is simply too expensive for the level of criminality displayed here, if it were less so I would see it being fully justified.

Posted by: Soronel Haetir | Apr 5, 2018 11:49:34 AM

Shon Hopwood, whose book Law Man was very good, noted this ruling:


It is somewhat relevant.

Posted by: Joe | Apr 5, 2018 11:53:20 AM

I can speak from experience, anytime I had a case I was working on and the defendant had a prior drug case, it would get threatened - double the stat max or double the mandatory minimum. Rarely did they file the 851, but it was always "close" to being filed and influence many cases I saw or dealt with directly.

Posted by: atomicfrog | Apr 5, 2018 1:21:22 PM

I think. as the 7th Circuit realized, the federal conspiracy law got used a little too loosely in this case and part of that is in the way that the federal statute defines conspiracy. As always judging through the state court lens in which I practice, if I tried to charge conspiracy to traffic in the first degree based on a continuing distribution scheme, I would get directed out. The conspiracy which the evidence proved was to go in with the street dealers for one trip to get 54 grams. (In my state, the larger scheme would have a range of 10-30 or life -- probably resulting in a sentence in the 10-15 range for a first time offender -- and the smaller scheme would have a range of 5-15 -- probably resulting in probation for a first time offender.)

At least in my state, defense attorneys want offenses to have multiple degrees. That way, the facts that trigger a potentially longer sentence are not left to the judge to decide on a preponderance standard but have to be proved to a jury beyond a reasonable doubt. The downside is that the higher degrees have a higher minimum and that gives the prosecutor leverage when the prosecutors have the evidence and the facts to support the higher degree. But that is the price for having a legal system that ties range of punishment to specific elements of the offense.

Posted by: tmm | Apr 5, 2018 1:58:20 PM

Its kind if like the ASA see what the max sentence could be and if they vary downward, they feel good about it. I believe its just a number to them, has no real value. They have such unweilding absolute power , especially whrpen any MMS are issued or tags like career offender otr Acca. Speaking of which, the stacking is deplorable, need to dump thise..Maybe for the Las Vegas shooter, understandable if were around, want to keep him in wraps.

Posted by: MidWestGuy | Apr 5, 2018 2:08:01 PM

Thank you Doug,

This is very helpful to a case I am working on this week. "A lawyer's failure to learn the relevant facts and make an estimate of the likely sentence constitutes deficient performance."

This quote supports arguments I have been making for a long time about two points. First, A capital defendant should be entitled to a pretrial hearing to determine whether any aggravating factors exist (because in North Carolina the State doesn't have to include aggravators in the indictment or even tell us which ones they think exist. )

Second, In an issue which smacks of ex post facto violations, a prosecutor can increase a defendant's exposure to sentence after the date of the offense by deciding to prosecute or not prosecute a pending charge which could add prior conviction points to a def's record, thus increasing potential punishment. (because the Apprendi Rule does not apply to prior convictions.)

Believe it or not, in NC a murder which was noncapital when committed can become capital when tried!!

Sort of makes it hard to "estimate the likely punishment."


Posted by: bruce cunningham | Apr 5, 2018 3:12:37 PM


So long as the aggravating offense occurred prior to the murder I really don't see any relevance in the decision of which order to prosecute in. Now, if you are saying that a second offense that actually came after the murder could somehow influence death-eligibility I would agree there are serious problems.

Posted by: Soronel Haetir | Apr 5, 2018 4:15:09 PM

good question Soronel, the answer is that if the aggravator is the defendant was convicted of a prior crime of violence, then the State can choose to try another pending violent felony before trying the murder. Suppose the Def committed a violent felony on January 1, but the case was pending when the killing occurred. Def had a clean record at the time of the killing, no convictions.

But then the prosecutor decides he/she will try the Robbery on February 1, not to get a robbery conviction, but to get an aggravator of a prior conviction in order to expose the def to death penalty, even though he didn't COMMIT a capital offense at the time of the killing.

For those folks on the list serve who are grammar buffs. The precise aggravator is "the defendant HAD BEEN previously convicted of a violent felony." Through some twisted interpretation of the King's English, our appellate courts have decided that HAD BEEN is not past perfect tense. Past perfect tense is an act in the past, before another act in the past. (the robbery conviction was before the killing. ) Our courts read HAD BEEN convicted to mean the same thing as" HAS BEEN convicted, or present perfect tense.

It is a crazy world when the rules of grammar can be altered with impunity.


Posted by: bruce cunningham | Apr 5, 2018 6:17:11 PM

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