January 13, 2017 (Fault Lines) – Earlier this week, the United States Court of Appeals for the Fourth Circuit issued an opinion that results in a pretty scary rule for defendants in that circuit. Confronted with a clear mistake by a sentencing court, the Court of Appeals declined to fix the mistake. Instead, they sent this message to defendants: you should have expected it.
The facts of United States v. Tate are pretty run of the mill for a federal drug case. Brandon Tate pled guilty to possession with intent to distribute crack cocaine. Federal court used to be the place to go for fancy financial crimes. Now it’s typically where crack dealers go to collect staggering sentences.
To understand what happens in a case like this, you need to know about the two things that affect every federal criminal case. The federal sentencing guidelines and plea agreements.
The Sentencing Guidelines are a large, complex set of rules that tell you how much time you get for whatever federal crime you are charged with. Depending on a bunch of different factors, including criminal history and the facts of the current case, the Guidelines provide a range of sentences. You can even get hammered for things you didn’t plead to or get convicted of. While it’s no longer mandatory that judges sentence according to the Guidelines, they’re still required to consider them, and they’re still the guidelines.
By the time a crack dealer shows up in federal court, a team of federal law enforcement agents has amassed a mountain of evidence against him. About the only choice left is to snitch or cut a deal with the government, which is written down in a plea agreement with the prosecutors. That’s often the best strategy, or at least it used to be.
A plea agreement in federal court is governed by contract law, but it turns out it’s not really like a regular contract. Each party gives something up in exchange for a benefit. Or that’s how it’s supposed to work.
Brandon Tate, faced with the typical mountain of evidence, decided to enter into one of those agreements. He gave up his right to a trial and his right to an appeal in exchange for the government’s agreement to recommend the low end of the “applicable sentencing guidelines” at his sentencing hearing.
Seems like a fair deal. Tate pleads guilty and nobody’s golf game gets interrupted by a pesky jury trial. The feds help Tate get the lowest sentence available, which is generous. As long as the district court doesn’t screw up the guidelines, all is well.
In Tate’s case, the district court did screw up the guidelines. Based on a procedural quirk in North Carolina sentencing law, the guidelines can only count a sentence from a prior North Carolina conviction once. Makes sense, unless you are the government. Then, of course, you want to count any conviction as many times as you can.
The district court found Tate was facing 57 to 71 months, when he should have been facing 46 to 57 months. The 11-month difference doesn’t seem like much time, unless you are serving it. Then every single day of those eleven months becomes a big deal.
Appellate courts exist to correct errors. Not in this case. At oral argument, the Court of Appeals was pretty clear that the guidelines had been calculated incorrectly. So the government got its part of the deal it made with Tate. Nobody’s lazy days off get ruined by a long, boring trial.
But Tate didn’t get his part of the deal. He got the low end of the wrong guidelines, not the right guidelines. Contract principles should apply. When you enter a contract to buy a house, you get the house you bought. If the real estate agent moves you into the house next door, that’s a problem.
Tate should have gotten the low end of the correct guidelines. There doesn’t seem to be much question about that. But he had given up his appellate rights, so he could only file an appeal if he could show the government breached the plea agreement.
Tate noted a timely appeal of his sentence, claiming that the government’s sentencing recommendation breached the plea agreement. The government then moved to dismiss the appeal, arguing that the appeal waiver in Tate’s plea agreement bars Tate’s claim.
The Court of Appeals agreed Tate could argue the government breached the plea agreement, which would allow his case to move forward. But the Court took an interesting approach to contract law, noting that no party to a contract was required to do more than they had agreed to do.
The only question here is what the government was required to do under the plea agreement. The plea agreement stated that the government would seek a sentence at the lowest end of the “applicable guideline range.” We hold that the “applicable guideline range” means the guideline range found by the district court, and that, therefore, the government’s sentencing recommendation complied with the plea agreement.
The critical issue was whether an incorrect sentencing range affected the agreement. The Court said no.
Moreover, Brown counsels that common sense should be used when interpreting such provisions. Here, when the process and structure of sentencing are taken into account, common sense dictates that “applicable guideline range” signifies the range found by the district court.
In other words, you don’t have a right to the right sentence. You just get whatever sentence the judge comes up with, even if he is wrong. Seems like a more sensible approach would recognize that all parties to a plea agreement should expect the basic law to be followed. No one would agree the wrong sentence can be right.
The Court talked logic, which is a guarantee that the next sentence is going to be utterly illogical.
…Tate’s proposed interpretation of the plea agreement is logically untenable. Tate contends that the term “applicable guideline range” should be read to mean the correct guideline range–which in this case we assume to be 46 to 57 months.
It is “logically untenable” to expect that an agreed-upon guidelines range should be the right one? By extension, the Court thinks it makes perfect sense that the parties contemplated a mistake at sentencing in reaching an agreement, and that mistake is acceptable.
This is not a contract any rational person would enter. You are completely at the mercy of a mistake in sentencing, and there is nothing you can do about it. Such is the nature of today’s criminal justice system. In the opposite situation, where the judge incorrectly gave a defendant a much lower sentence, the Court would probably apply a whole different kind of logic.
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I guess the only solution is to stop waiving appeal.
No waiver, no plea. Only a few federal judges (like Judge John Kane) have refused to approve waiver of appeal without justification.
1. Counsel should always consider a Rule 11(c)(1)(C) plea agreement when in doubt. That will bind the judge to a particular range or sentence.
2. Many probation officers will do pre-plea Guideline calculations if requested by both the prosecution and defense. If one is obtained, and in the absence of a Rule 11(c)(1)(C) deal, that calculation can be put into the plea agreement as the stated predicate for the agreement. Many trial judges will relieve a defendant of a plea, even in the absence of Rule 11(c)(1)(C) deal, where both sides relied on such a tentative calculation that turns out to be wrong.
3. The defendant in the case you highlight may not be without a remedy. At least in the Eighth Circuit, as a matter of law, you cannot waive an ineffective assistance of counsel claim. In my opinion, the guy in the case you highlight has decent IAC claim if he can prove the Guideline decision by the judge was wrong and counsel failed to negotiate a plea agreement that protected the client from unreviewable error by the sentencing judge.
4. I love your title. It is entirely accurate. It is also true that finality is important to hard-hearted bastards (like me) who sit as federal judges.
Your post is important–I hope a lot of federal defense practitioners read it. All the best.