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May 11, 2021

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

May 11, 2021 at 11:19 AM | Permalink


I checked the docket - I don't see a Government motion seeking rehearing, so this is all on the court, apparently.

Posted by: Jonathan Byrne | May 12, 2021 8:15:45 AM

This is really an extraordinary thing. It is exceedingly rare for a Circuit Court to grant Rehearing En Banc "sua sponte", based only on a request of a member of the three-Judge panel, without a party filing a Petition seeking Rehearing En Banc. While there will only be additional briefing if the Fourth Circuit requests and orders it, there will be additional oral argument before the En Banc Court, which will probably be well worth listening. The factual background of this case is sympathetic to all but the most hard-hearted of Judges, but I fear that the En Banc Court will come out the other way, and this young woman will have to 1) file a 2255 Habeas Corpus Motion to develop and pursue her claim of ineffective assistance of counsel; and 2) also seek Presidential clemency (probably a commutation of her sentence) to get any relief. In my experience, the 4th Circuit is the second most conservative Federal Circuit Court in criminal matters, after the 11th Circuit based in Atlanta. The other thing is that there are many defendants whose addiction and drug dealing began with legitimate medical problems, for which they were prescribed opiate drugs. Here in Lexington, I saw such a case involving a 55 year old man, who injured his back while loading and unloading trucks for United Parcel Service. For 6 months after his surgery, his physician prescribed opiate pain pills for him, but then cut him off, without tapering. The man quickly realized that he could not afford to buy the same number of pills from drug dealers, so he soon turned to heroin, which fits the same receptors in his brain. The law firm I worked for represented him in 2 separate cases (DUI and possession of heroin and drug paraphanalia; and possession of heroin and a probation violation) involving heroin. In the first case, he had gone into a coma at the side of the road, after snorting heroin laced with fentanyl in his car with the engine running. The Fire Department ambulance crew had to break is back passenger window to get into his car and give him Naloxone to save his life. In the second case, he was found shooting up heroin in the bathroom at a doctor's office, where he had taken his 83-year old Mother for her appointment. This man is not a real criminal, he is just a drug addict who got hooked on opiates following a back injury at work. Prior to his back injury in his early 50s, he had no criminal history other than minor traffic violations. These kinds of cases indicate that as a society, we need to treat addiction as a public health problem, not as a crime.

Posted by: Jim Gormley | May 12, 2021 8:29:54 AM

Prof. Leah Litman (involved in criminal justice issues, including writing briefs for key cases) tweeting on the newest batch of judicial nominees:

"Another batch of judicial nominees that will add much needed professional diversity to the bench. All three appellate courts nominees were public defenders; two spent a majority of their career there."

"As last weeks #SCOTUS argument in Terry highlighted, we NEED federal judges who understand sentencing."

"This is really great stuff from @POTUS
and @WhiteHouse

But it’s also a testament to the advocacy and organization by groups that have been pushing for this—@WeDemandJustice"

President Biden continues to walk the talk on criminal justice.

Posted by: Joe | May 12, 2021 10:04:21 AM

On the flip side of the coin, it seems like Biden is considering "progressive" prosecutors for some USA positions.

It's all part of his devious plan to frustrate advocates on the left by consistently acceding to their demands.


Posted by: hardreaders | May 12, 2021 11:41:20 AM

The ground is broad enough that there will be a lot, including our host, to complain about.

Posted by: Joe | May 12, 2021 12:18:42 PM

Prez Biden has so far been quite good on a number of appointments, though his selections for the US Sentencing Commission are where it could really make a big difference. About to do a post on this front!

Posted by: Doug Berman | May 12, 2021 3:33:27 PM

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