Challenging Appeal Waivers

As we have written about elsewhere, federal sentencing can be complicated.  Federal judges must correctly calculate the sentencing guidelines and properly weigh the sentencing factors set forth by congress.  As with any complicated area of the law, judges sometimes make mistakes, which is what appeals or for.

So why are there so few sentencing appeals in the federal system?

How the government avoids sentencing appeals

Unfortunately, most United States Attorneys offices have a policy of systematically attempting to deprive criminal defendants of their right to appeal.  How do they do this?  By refusing to agree to any plea bargains which do not contain a waiver of the defendant’s right to appeal.

So, because so many federal criminal cases result in a plea bargain of some kind, many defendants are forced to give up their valuable appellate rights.  Under an appeal waiver, the sentencing judge could calculate the guidelines incorrectly, or neglect important sentencing factors (such as the defendant’s personal history) and the Court of Appeals will be powerless to help.

Appeal waivers are not always enforceable!

Are appeal waivers impossible to overcome?  Usually – but not always.  In some cases, the Courts of Appeal have refused to enforce the waivers.  For example, what if the district judge did not ensure that the defendant understood the significance of the waiver at the change of plea hearing?  The waiver may be unenforceable.  In addition, the appellate courts have found that some errors are so fundamental that a defendant cannot waive them such as prosecutorial misconduct or ineffective assistance of defense counsel.

If you have been on the receiving end of legal errors in a federal criminal sentencing, consult a federal criminal defense attorney immediately even if you entered a plea agreement with an appeal waiver.  They can help you figure out whether you might be able to appeal the sentencing errors despite the waiver.


DC Court of Appeals Holds that Non-Citizens Have a Right to a Jury Trial for Offenses Resulting in Deportation

Ordinarily, there is no right to a jury trial in DC Superior Court for charges carrying less than six months.  This all but abolishes misdemeanor jury trials because most misdemeanors in the DC Code carry 180 days, which is just shy of six months.

But what about non-citizens who can be banished from the country forever as a result of the conviction?  The Court in Bado v. United States decided this consequence makes those offenses sufficiently serious to require a jury trial.

The panel hearing the case was deeply divided – a three judge panel somehow produced a decision with four opinions.  Judge Thompson wrote the opinion for the court, and and a separate opinion concurring with herself.  Judge Ruiz’s concurrence discusses some finer points of deportation law, and responds to Judge Fisher’s dissent which opens as follows

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the same offense does.

Ever since the Supreme Court’s holding in Padilla that defendants have a right to effective assistance of counsel in considering immigration consequences of their criminal convictions, defense lawyers everywhere have had to start doing a little immigration on the side.  Now, at least in Superior Court, the defense bar will have to get even more up to speed on the law of deportation.

Federal Drug Trafficking

Drug crimes are prosecuted by both state and federal authorities. While in theory any drug possession or distribution offense can be prosecuted at the federal level, in practice, federal prosecutors will go after big cases involving large quantities of drugs or a large group of drug dealers, while leaving state authorities to pursue smaller — often misdemeanor — offenses involving individual drug users or dealers. Sometimes, state authorities may even refer large cases to federal prosecutors for prosecution.

How Federal Drug Prosecutions Work

Federal drug offenses are criminalized under 21 U.S.C. § 841 et seq. These provisions set forth the prohibited acts and penalties based on type of drug, quantity, and whether death or serious bodily injury resulted from the offense. 21 U.S.C. § 846 is the attempt or conspiracy section. In practice, federal prosecutors will often bring drug charges as a conspiracy under § 846. There are several strategic reasons for this, but the most important one is that by charging a drug offense as a conspiracy, the defendant becomes responsible for all reasonably foreseeable acts of co-conspirators. Thus, for example, a street-level dealer who sold a small quantity of drugs and never touched a firearm can still be held criminally responsible for much larger quantities of drugs sold by co-conspirators and in certain cases can be responsible for co-conspirators’ use of firearms.

If you have been charged with a drug offense, it is important to consult an experienced attorney to determine what additional charges the government may plan to bring and to discuss what possible defenses you may have. Federal drug laws are draconian and the prosecutor has many options to increase the stakes, as in the following examples:

Proceeding To Establish Prior Convictions

21 U.S.C. § 841 provides for enhanced penalties when the defendant has previously been convicted of felony drug convictions in either federal or state court. The enhanced penalties can range from a doubling of the mandatory minimum sentence to life imprisonment.

It is important to note that the enhanced penalties are applied only if a federal prosecutor chooses to file what is known as an “851 information,” named after the section, 21 U.S.C. § 851, that requires a federal prosecutor to file an “information” setting forth the prior convictions to support the enhanced penalties.

In practice, the § 851 information is an exceptionally powerful tool for prosecutors to secure guilty pleas from defendants when the evidence against them might otherwise be marginal. By threatening a potential doubling of the mandatory minimum sentence, such as from five to 10 years, or even life imprisonment, the prosecutor can increase a defendant’s potential exposure by going to trial and bring otherwise unwilling defendants to the bargaining table. While some courts have criticized this practice, judges are generally forbidden from participating in plea negotiations and cannot do anything to prevent it.

Firearms Charges

When drug cases go to trial, federal prosecutors frequently bring gun charges under 18 U.S.C. § 924(c).

If convicted under this section, a defendant faces additional sentences of between five and 10 years’ imprisonment. The sentences under § 924(c) are required to be consecutive to any other penalties imposed for the underlying drug offense. Thus, for example, a defendant who is convicted of conspiracy to possess 100 grams or more of heroin and has one prior felony conviction faces a mandatory minimum sentence of 10 years on the drug offense. If the prosecutor also brings a § 924(c) charge alleging that the defendant possessed a firearm in connection with the offense, he faces a total mandatory minimum sentence of 15 years.

Even if no additional charges for firearms are brought, a defendant can still face a higher sentencing guidelines range as a result of the presence of firearms. While the sentencing guidelines range is now advisory, courts are still required to consider them. Many judges will frequently refer to the guidelines range when sentencing a defendant. If a defendant (or co-conspirator) is found to have possessed a firearm in connection with the offense, his guidelines range will generally increase by approximately 25 percent.

Representing Defendants In Federal Drug Prosecutions

At Burnham & Gorokhov, we have extensive experience representing individuals charged with federal drug offenses, ranging from possession charges to serious charges of distribution and conspiracy. In many cases, we have been successful in securing below-guidelines sentences for our clients. If you or someone you know has been charged with a drug offense, it is important to have an experienced attorney who can advise you accordingly.

To schedule a free phone consultation, please call our office at 202-386-6920. You can also complete the online contact form.

Targets, Subjects and Witnesses in Federal Criminal Investigations

Federal prosecutors and agents conducting criminal investigations often talk in terms of “targets”, “subjects”, and “witnesses.”  So what do these terms mean and why are they important?

In laymans’ terms, a target is a person who the government has decided to prosecute if they can whereas a witness is a person the government believes is innocent but may have relevant information.  A subject is somewhere in between – the government has not decided whether they are guilty of a crime or not.

A simple example will illustrate the point.  Let’s image a mortgage fraud investigation where the government learns a borrower falsified their income to get a loan, and the loan officer did their due diligence but did not discover the fraud.  The government will classify the borrower as a target and the loan officer as a witness.  But what about the other parties involved in the loan?  Say, the realtor or the title insurer?  What did they know?  They government may not be sure at first and will therefore classify other parties as subjects until it figures out whether they were parties to the fraud.

The important thing to understand about these categories is that they have no real legal effect.  If a government agent seeks to interview you and says you are “just a witness” there is nothing stopping that agent from taking your statement and using it to prosecute you later.  No judge will dismiss your charges and your statement is probably admissible against you.  So it is not a good idea to rely too heavily on these classifications.

Still, if you are involved in a federal criminal investigation, it is helpful to know how the government has classified you, especially at the beginning.  It can be a useful guide, so long as you take it with a grain of salt.

If you believe you are implicated in an investigation, a federal criminal defense attorney can inquire about your status.  If you are a target or subject, your lawyer may be able to persuade the government to reclassify you, depending on the facts of your case.  Even if you are a witness, seek counsel immediately to ensure you remain a witness.

Possession of a Firearm in Relation to a Drug Trafficking Crime or Crime of Violence under 18 U.S.C. 924(c)

A “924(c)” firearm charge is fairly common offense in federal criminal cases.  It is often a companion charge to drug trafficking, Hobbs Act Robbery, or other charges.

As the name suggests, this statute makes it a federal crime to possess a firearm “during and in relation to” a crime of violence or drug trafficking offense.  This is the basic definition, but what else should you know about this offense?

How this charge can be proved

First, many courts have given a broad definition to the “in relation to” element.  For example, if a person is convicted of selling drugs, and kept firearms in their home but did not use them, they could potentially be exposed to a 924(c) charge as well.

Why?  Because, courts have reasoned, maybe they would use those guns if someone tried to rob them of their money or drug stash.  The bottom line is that the government may only have to prove a tenuous connection between the drugs and guns in order to prove up the 924(c) charge.

Mandatory prison time

The penalty for this offense is unusual as well – 5 years, no more, no less.  This is one of the rare offenses where the judge has no discretion at all as to what sentence to give.  The judge may be of the opinion that five years is too severe – the law requires the judge to impose it anyway.

For this reason, a 924(c) charge should be avoided at all costs.

A gift to prosecutors

Because of the ease of proving this offense, and the automatic prison term, it makes an ideal bargaining chip for the government.  Many defendants have been persuaded to plead guilty to serious drug trafficking charges based on the explicit or implicit threat of a 924(c) charge.

But what if you have a valid defense to the drug trafficking charge and/or the gun charge?  An experienced criminal defense attorney may be able to help you counter the government’s leverage.

Seek legal counsel

If you are facing a 924(c) charge – seek legal counsel immediately.  You may have a viable defense to the charge.  Did the gun in question actually belong to someone else?  Was the gun related to the drug or violent crime?  Do you have a defense to the underlying charge?  A federal criminal attorney can help you investigate these and other potential defenses.

And, if the government’s proof on the gun charge is solid, your attorney may be able to help you avoid the mandatory time through a plea bargain to the related charge, or through other means.

If you or someone you know may be facing a 924(c) charge, feel free to contact us for a free consultation.

Thoughts on the Fourth Circuit’s Ruling in the McDonnell Case

For a while things were going well for former Virginia Governor Bob McDonnell’s appeal of his convictions for corruption related offenses.  The Court allowed him to remain out of custody while the appeal was pending and the panel who heard his case – Judges Motz, King, and Thacker – was pretty favorable by Fourth Circuit standards.

But the Court ruled against him on every issue.  In a published decision issued last Friday.

The media has (appropriately) given most of its attention to the Fourth Circuit’s decision to uphold the relatively broad definition of “official act” given to the jury by district judge Spencer.  This case makes it clear that in corruption prosecutions the government is not required to prove that the public official discharged some duty explicitly assigned to him by law in exchange for a benefit – merely exercising his or her influence may be enough.  This holding will undoubtedly have its effect on future prosecutions and the behavior of public officials in general.

There are some other interesting takeaways as well.  Appellate practitioners take note – one of McDonnell’s assignments of error related to the district court’s denial of his motion to sever was deemed waived because it was raised in his reply brief at the trial level.  Definitely a word to the wise.

The Court also passed up an opportunity to critique the pitiful voire dire practices common in federal courts.  McDonnell’s lawyers challenged the district judge’s decision to conduct group voire dire on most questions, rather than individual.  In many state courts, the individual voire dire is the rule, rather than the exception, even in cases much less sensational than the prosecution of a former governor.  But the Fourth Circuit found no error in the jury selection.

Finally, it should be noted that McDonnell’s legal team had a tough job on appeal.  With only one exception, the issues they raised were subject to the “abuse of discretion” standard of review, which entitles the trial judge to great deference on appeal.  Even with great lawyers, that standard is hard to overcome on appeal.

What is the safety valve? How does it affect sentences in federal drug cases?

The federal safety valve is a provision of law that allows a district court to sentence a defendant convicted of drug trafficking below the applicable mandatory minimum.  Here is some information about how it works.

A Powerful Legal Tool for Avoiding Mandatory Minimum Sentencing

In federal drug cases, a defendant may face a mandatory minimum of five or 10 years if the amount of controlled substances involved in the case is sufficiently high.  The mandatory minimum can be even higher if the defendant used firearms or has prior drug convictions.

The district court ordinarily has no power to sentence a defendant below the mandatory minimum, even if the judge strongly believes that such a sentence is too high.  However, if a defendant qualifies for the safety valve, the mandatory minimum sentence no longer applies (and the sentencing guidelines will be lower as well).  So how does one take advantage of this powerful provision of law?

How to Qualify for Safety Valve

The safety valve, as codified in 18 U.S.C. 3553, provides a sort of lifeline to defendants convicted of serious drug offenses who have little or no criminal history. For the safety valve to apply, the judge must find at sentencing that each of the five criteria listed in the statute are met, not the least of which is the requirement that the defendant not have more than one criminal history point under the federal sentencing guidelines.  The other criteria are (in simplified layman’s terms):

–  no violence or firearms involved;

–  no death or serious injury to any person;

–  the defendant was not a leader of a criminal enterprise;

–  the defendant must be truthful with the government about his or her criminal conduct.

Do you qualify for safety valve relief?

In some cases, it is clear from the beginning that a defendant will qualify for the safety valve. In other cases, the issue is hotly contested and a defendant may not know for sure until the day of sentencing whether he or she will qualify for safety valve relief.  For example, there may be a dispute as to whether the defendant was a “leader” or whether he or she has been truthful with the government.

In the latter category of cases, it is important to do everything possible to maximize the chances of qualifying for the safety valve, a process that commences from the very start of the case.  An experienced federal criminal defense attorney can help you put on the most powerful case possible for safety valve sentencing if your eligibility is subject to dispute.

If you need more information on this important provision of federal criminal law, please contact us for a free consultation.