« "Incarceration Reimagined: A Diversionary Option for Serious Felony Offenders" | Main | US Sentencing Commission schedules big meeting for August 8, 2024 to vote on retroactivity and priorities »
July 25, 2024
Notable Third Circuit panel ruling finds ineffectiveness in erroneous sentencing plea advice
A helpful reader alerted me to a new panel ruling from the Third Circuit in Baker v. US, No. 23-2059 (3d Cir. July 25, 2024) (available here). The start of the extended opinion highlights why it seems to me notable:
Following a robbery of the First Atlantic Federal Credit Union in Neptune, New Jersey on January 13, 2010, federal prosecutors charged Steven Baker with bank robbery and using a firearm during the robbery, the latter in violation of 18 U.S.C. § 924(c). They offered Baker a plea agreement, under which he would plead guilty to those two charges and also admit to, but not be charged with, the commission of two other bank robberies while using a firearm.
It was here the problems at the heart of this appeal began. Baker’s counsel advised him that he faced a total of 1517 years’ imprisonment if he accepted the plea and that, if he did not accept it, the Government would also charge him in connection with the two other armed bank robberies. As to the three potential Section 924(c) counts, his counsel told him that he faced a consecutive term of 21 years’ imprisonment. In fact, he faced a consecutive 57-year mandatory minimum sentence under the statute’s “stacking” provision then in effect. After receiving this highly inaccurate advice, Baker turned down the plea, was charged in connection with the other robberies, and proceeded to trial, where he was convicted on all counts. His sentence was 57 years on the Section 924(c) counts plus 87 months on the bank robbery charges.
Baker filed a direct appeal, and we affirmed the judgment and sentence. United States v. Baker, 496 F. App’x 201, 206 (3d Cir. 2012), cert. denied, 568 U.S. 1148 (2013). He then filed a Section 2255 federal habeas motion, arguing that his counsel was constitutionally ineffective for severely miscalculating his sentence exposure as he weighed the plea offer. 28 U.S.C. § 2255. The District Court denied relief, determining Baker could not show prejudice.
Considering the significant disparity in Baker’s comparative sentence exposure between accepting the plea offer and going to trial and crediting his testimony that he would have accepted the plea agreement but for his counsel’s error, we conclude that Baker has demonstrated prejudice. Thus, we reverse and remand.
July 25, 2024 at 09:38 PM | Permalink
Comments
Professor Berman,
Care to comment on the appeals court seemingly making its own factual findings and showing no deference to the trial court's?
Is that how appellate review works?
Posted by: The REAL Anon | Jul 26, 2024 7:13:50 AM
https://thepleabargainingblog.blogspot.com/2024/01/new-article-explores-psychology-of.html
This seems like BS, but what do you think, Doug?
Posted by: federalist | Jul 26, 2024 9:40:09 AM
Ha ha---Doug, that's an impostor . . . .
Posted by: federalist | Jul 26, 2024 12:04:30 PM
Prof Berman -
To help stay on topic, what do you say about the appellate court acting as a trier of fact?
Posted by: Anon | Jul 27, 2024 11:54:11 AM
Seems like the panel views "large sentence-exposure disparities" as an almost per se showing that there was a "reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” I would probably favor adoption of a strong presumption on this ground, though I do not follow this jurisprudence closely enough to know if that's functionally what is afoot. Since I view huge trial/plea sentence disparties to be constitutionally worrisome, I am not bother at all when there is rigorous "policing" of the means by which these disparties come to happen.
In the end, I have always been unsure what aspects of the Strickland test (and lots of other complicated constitutional tests) involve pure factual assessments and which involve pure conclusions of law and which are mixed questions.
Posted by: Doug B | Jul 27, 2024 12:16:00 PM
Particularly if the disparity is reached by not pursuing provable charges I don't see how "huge disparities" can be all that suspect. The executive is permitted to land anywhere from a 100% discount (statement of non-prosecution or even preemptive pardon), to "throw the book at them").
The sentence needs to be reasonable in light of the charges that are proven or admitted to, not in light of the universe of charges that *could* be proven or admitted to.
Posted by: Soronel Haetir | Jul 28, 2024 11:19:35 AM
Dude got a fair trial. That's why this idea of "I would have pled guilty but for . . . ." is such bad law.
Posted by: federalist | Jul 29, 2024 9:15:07 AM
Doug: This Third Circuit panel arrived indirectly at the same result that is automatic in the Sixth Circuit. You may recall that this is the same scenario that my friend and former client Dr. Ali Sawaf got relief on his 2255 Motion on appeal to the Sixth Circuit ten years ago now. See, "Ali Sawaf v. United States", 570 F.App'x. 544 (6th Cir. 2014). Sawaf's young trial lawyer (who had never handled a federal criminal case before) urged him to turn down a 41-month plea offer for violating 21 U.S. Code sec. 841(a). Defense counsel gave Dr. Sawaf no estimate at all of how much time he was facing if he went to trial and lost, which is what happened. Dr. Sawaf ended up with the statutory maximum sentence of 20 years under 841(b)(1)(C) [Guidelines were 235 to 293 months, I recall]. The Sixth Circuit has a unique presumption that if there is a large disparity between the plea turned down on erroneous legal advice and the sentence imposed following trial, then the prejudice prong of the Strictland test is conclusively PRESUMED. See, U. S. v. Morris, 470 F.3d 596, 602-03 (6th Cir. 2006) and U. S. v. Griffen, 330 F.3d 733, 737 (6th Cir. 2003). And on appeal from 2255 decisions, mixed questions of fact and law are reviewed DE NOVO by the Circuit Court panel. Incorrect legal advice, or giving no estimate of the post-trial sentence can cause huge problems, which can take large amounts of legal work and years to time to fix. Dr. Swaf's 2255 Motion was filed in November 2009, but he was not released following remand from his 2255 appeal until September 2014. Her served 13.5 years of an erroneous 20-year sentence because of mistakes made by his young, inexperienced lawyer. Sawaf was unable to recover any damages from the attorney for legal malpractice, because under Kentucy law, a criminal defendant cannot recover for sentencing mistakes made by legal counsel. In fact, a criminal defendant an only recover damages against defense counsel in Kentucky if he can prove that he is actually innocent of the chargers he was convicted of. The Kentucky legislature needs to enact statutes to fix that.
Posted by: Jim Gormley | Jul 29, 2024 9:35:26 PM
DOUG: Take a look at what happens when a U. S. District Judge improperly extrapolate drug quantity, without the Government putting up proof to satisfy their burden at sentencing. See, United States v. Titus, 78 F.4th 595 (3d Cir. 2023). Dr. Sawaf's Judge did this to him to reach a large enough drug quantity to receive the 20-year statutory maximum sentence. The prosecution's expert physician witness reviewed only a random sample of 50 patient files out of more than 2,000 total files. At the prosecutor's urging, the Judge extrapolated drug quantity to every pill of narcotics written in all 2,000+ patient files. Defense counsel failed to object to perfect the issue for appeal, and then he failed to raise the issue on direct appeal, where he remained counsel for Dr. Sawaf. This completely fails to satisfies the Government's burden of proof to prove relevant conduct by a preponderance of evidence at sentencing, and violates Due Process of Law.
Posted by: Jim Gormley | Jul 29, 2024 9:43:10 PM
DOUG: When I made time to read the 32-page long Third Circuit opinion, I was not surprised to find Dr. Sawaf's opinion cited as an authority in footnote #11 on page 18. The main difference between the two cases was the remedy ordered by the Circuit Court. In Steven Baker's case, the Third Circuit ordered the Government to re-offer the original plea bargain in the District Court, to see whether the defendant would really accept it. The Sixth Circuit did not specify the exact remedy, but the District Judge simply re-sentenced Dr. Sawaf to "time served", which was 13.5 years. We argued that the Judge should have ordered the Government to re-offer the original plea bargain of 41 months, but she wouldn't do it because Dr. Sawaf had already served many years beyond the 41 months (13.5 years). It would have made a difference to Dr. Sawaf, because he turned 65 years old in prison, but could not draw 8 years' worth of Social Security benefits due to his incarceration. If he had been re-offereed the 41-month plea deal, he could have collected the 8 years worth of Social Security payments, worth about $200,000.
Posted by: Jim Gormley | Jul 30, 2024 2:33:47 PM
