U.S. v. Mendoza, No. 06-50447 (5-8-08). This is a new opinion relating to a dismissal for a Sixth Amendment speedy trial violation (eight year delay between the indictment and arrest). The original opinion was withdrawn and this one issued. The 9th (T. Nelson joined by Paez and a concurrence by Bybee) find that the defendant was living openly in the Philippines, and that the government had plenty of information and leads to inform him that he was facing charges. The defendant did not know that he was facing these tax evasion charges. Under Barker, his constitutional speedy trial rights were violated. Bybee concurs because of precedent, but he is troubled that a defendant can supposedly run but since he didn't hide, assert speedy trial.

U.S. v. Pete, No. 06-10390 (5-8-08). In an appeal alleging a Speedy Trial violation (the 9th has been deciding a number of them recently it seems), the 9th concludes that the time between a motion to recall a mandate through the Supremes' denial of cert is all excludable. Here, the defendant had indicated that he intended to file cert in his motion to recall the mandate, and so he is taken at his word until he disclaims his intent.

Brown v. Farwell, No. 07-15592 (5-5-08). "The prosecutor's fallacy" occurs when the prosecutor confuses source probability of DNA with random match probability. That is, a 1 in 10,000 probability of a random DNA match is NOT equated to a 1 in 10,000 chance that the sample did not come from the defendant. Petitioner was convicted of sexual assault on a child. There was conflicting circumstantial evidence, and real questions of eyewitness identification. The state's expert gave testimony that stated that petitioner's guilt was 99.99967%, and downplayed the matching of petitioner's four brothers. The state admitted error in prior proceedings but tried to backtrack at argument (not smart). The 9th affirmed the district court's granting of the petition (Wardlaw joined by Hawkins). The 9th focused on the Jackson standard of a rational jury versus a reasonable jury, and that an analysis was lacking of the elements and evidence in the state supreme's court's decision. O'Scannlain dissented, arguing that the state supreme court's application of Jackson and federal law was reasonable, and that the evidence had to be viewed in the light most favorable to the state, and here there was circumstantial evidence, and some weight should be given to DNA.

Congratulations to Paul Turner and Franny Forsman of the Nevada FPD Office (Las Vegas).

U.S. v. Chapman, No. 06-10316 (5-6-08). Three weeks into trial, the prosecutor turned over 650 pages of Brady and Giglio and other discovery. This was in a complex fraud trial, with goverment witnesses who had shady or questionable pasts or motives, and the government had been ordered to turn over the discovery far in advance. They did not. The court railed against the prosecutor, and the defendants moved for mistrial. The court granted the motion, and dismissed the indictment. The government appealed. The 9th (Wardlaw joined by Hawkins AND O'Scannlain) held that the government could appeal and the appeal was not barred by double jeopardy. The 9th then found that the court did not abuse its discretion in dismissing the indictment. It is worth quoting the conclusion in full (p. 4964):

The district court did not abuse its discretion in dismissing the indictment. The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many key witnesses had been testified and been released. Even
then, it failed to turn over 650 documents until the day the disrict court
declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form; conduct in flagrant disregard to the United States Constitution; and conduct which should be deterred by the strongest sanction available. Under these facts, the district court did not abuse its discretion in characterizing these actions as flagrant prosecutorial misconduct justifying dismissal. Nor did it abuse its discretion in determining that a retrial -- the only lesser remedy ever proposed by the government -- would substantially prejudice defendants.

Case o' The Week: Bad facts make bad law, Stoterau and Conditions of Supervised Release for Sex Crimes

In a very disappointing decision, Judge Ikuta upholds a laundry-list of supervised release conditions for child porn cases; and, specifically, polygraphs and Abel screening. See United States v. Stoterau, __ F.3d __, 2008 WL 1868997 (9th Cir. Apr. 29, 2008), decision available here. This is a particularly troubling tolerance of the Abel hocus-pocus, which one court has described as having factors that could have been cooked up at Hogwarts.

Players: Hard-fought appeal by CD Cal AFPDs Jonathan Libby and Kathryn Young.

Facts: 26-year-old Stoterau convinced 14-year old John Doe into posing for sexually-explicit pictures, which were then uploaded to a web-site. Id. at *1. Customers visiting this site would contact Stoterau, and Stoterau would drive the boy to their locations. Id. Doe would have sex with the customers for money, and Stoterau would get a cut. Id.

Stoterau was charged with and pleaded guilty to transporting child porn. Id. He raised many challenges to both his sentence and conditions of supervised release.

Issue(s): (Among many other issues): “Condition 12 [of supervised release] . . . specifies that Stoterau must submit to polygraph and Abel testing.” Id. at *8. (“Abel testing is a diagnostic exam for sex offenders that studies ‘visual reaction time.’”) Id. at *9.

Held: 1. Regarding polygraphs: “[T]he polygraph prong of Condition 12 does not infringe on Stoterau’s Fifth Amendment rights because Stoterau will retain these rights during his polygraph exams . . . if Stoterau receives a question during his polygraph exam which calls for him to provide an answer that would incriminate him in a future criminal proceeding, Stoterau retains the right to invoke the Fifth Amendment privilege and remain silent.” Id. at *8. “Stoterau is not entitled to receive Miranda warnings before undergoing polygraph examination pursuant to Condition 12 of his supervised release.” Id. at *9.

2. Regarding Abel Screening: “[W]e conclude that Abel testing does not implicate a particularly significant liberty interest, and thus does not require the district court to make the heightened findings required by Williams and Weber [the “antipsychotic drugs” and “penile plethysmograph” decisions.] Id. at *10.

Of Note: Judge Ikuta’s Stoterau decision (joined by Judges Wallace and Gould) is so disappointing on so many fronts it is hard to know where to start. The decision interprets relevant conduct broadly, id. at *3, tolerates a perfunctory recital of the Section 3553 analysis by the sentencing court, id. at *4-*5, gives de facto “reasonableness” deference to an in-guideline sentence, id. at *6-*7, does not fairly grapple with the junk science known as “Abel testing,” id. at *11, allows broad distribution of the PSR despite the shrink-patient privilege, id. at *15, and refuses to use a pseudonym in the opinion to protect the defendant while he is in custody, id. at *18. The opinion is grim – but important – reading for a child-porn client weighing his options and evaluating the value of a (c)(1)(C) deal.

How to Use: Abel screening has all the scientific rigor of phrenology. The Abel test is based on a trick: the person tested thinks they’re evaluating the attractiveness of projected images. “The subject is supposed to think that the paper-and-pencil test is the actual test, but the critical portion of the test calculates how long the subject gazes at the slide. It is this measure of [visual reaction time] that is used to determine the subject’s sexual interest in the various categories of adults and children shown in the slides.” Id. at *9.

If the subject knows the trick, though, the test doesn’t work – as recently conceded by Sharper Future in a case here in the Northern District of California. Thus, make sure every child porn client carefully reads page *9 of Stoterau, and thoroughly explain Abel screening in detail before supervision – well-informed clients cannot be effectively Abel-tested. In a sweet irony, a decision that touts “the public’s common law right of access to judicial proceedings,” id. at *17, can be used to nullify the very testing method that it tolerates on supervised release.

For Further Reading: Dr. Gene Abel has a full-service shop: for the low-low price of $250 you can get “certified” and pick from a laundry lists of handy official-sounding “clinical certifications.” See price list here. The good doc is teaching at a one-day training on May 17th in San Francisco. See plug here. Let’s go! A real scientist shouldn't mind a few members of the defense bar taking notes, right?

Here’s a great article to discuss at the San Francisco training, reporting one court’s description of the Abel test’s proprietary formulas: “For all we know, they and their components could be mathematically based, founded upon indisputable empirical research, or simply the magic of young Harry Potter's mixing potions at the Hogwarts School of Witchcraft and Wizardry.” Article available here.



Steven Kalar, Senior Litigator at N.D. Cal. FPD. Website at www.ndcalfpd.org

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U.S. v. Tapia-Romero, No. 05-50121 (5-1-08). The 9th (T. Nelson joined by Beezer and Gould) hold that the "cost of imprisonment" is not a 3553 factor to be considered in sentencing. Defendant argued that cost was a factor to be considered; the court hedged, stating that it was not for an Article III to decide to save the system money. On appeal, the 9th agreed, stating that 3553 does not allow or require such consideration. Defendant had argued that the "need for rehabilitation" and "the kinds of sentences available" would permit such consideration. The 9th was unwilling, which is strange since the effect on bed space is a factor to be considered by the Sentencing Commissionn, and in terms of policy in setting Guidelines, costs of imprisonment certainly weigh in the alternates to punishment. Why then does the PSR (at least in some districts) list the costs of various forms of imprisonment. This is a disappointing decision, showing a reflexive reaction rather than more sensitive analysis of the 3553 factors, including the "catch-all."

U.S. v. Stoterau, No. 07-50124 (4-29-08). Can mind control be a condition of supervised release. It seems that courts are requiring it in sex cases, especially child pornography, when it comes to supervised release conditions. In this case, defendant plead to transporting child pornography after an investigation and charges revolving around pandering and internet sex photos of an underage boy. The court gave an adjustment for "commission of a sexual act." He received a 151 mos. and 5 years of SR. This was appealed, arguing that it does npt fall within the charge, and the numerous conditions of supervised release, covering sex testing, polygraphs, controls on who he meets, post office boxes, and even receipt of so-called pornography. The 9th (Ikuta joined by Gould and Wallace) affirmed virtually all the sentence. The 9th upheld the adjustment for a sex act because of "relevant conduct." The sentence was also upheld as reasonable and that to the challenge that the reasoning for a Guideline sentence was merely rote, the 9th held that the court fully explained its reasoning under 3553 by mentioning the factors and saying the factors were considered as well as the Guidelines' reasoning seemed appropriate. As for the many conditions of SR, the 9th allowed polygraphing, explaining that Fifth Amendment protections still existed (immunity would have to be given), which leads to the question of whether it really can be used, or whether an invocation of the Fifth would lead to a violation of not undergoing sex therapy. The 9th also upheld Abel testing, despite its Daubert failings because, what the heck, it may help. The 9th also upheld the many conditions on whom and where and what the defendant can do, and get. It did vacate the condition against pornography, because of vagueness. The many conditions imposed are supposedly to help "sex counseling and therapy" but sure do smack of mind control and an obsession with what the defendant might do.

U.S. v. Medina, No. 05-30477 (4-29-08). This is a treatise on the Speedy Trial Act. The defendant, a member of a conspiracy, ducked and weaved through pretrial motions and continuances, and as trial was about to start, a STA violation was argued. The court found 21 days outside the STA limits, and dismissed without prejudice. The court acknowledged that 21 days of detention were a burden, but not enough to warrant dismissal with prejudice. The court also lamented the informal ways things were done, and that undoubtedly entered its calculations. The 9th (Ikuta joined by Gould and Fisher) affirmed. The opinion goes through the STA, mind-numbingly recounts the motions, and finds no abuse of discretion.

Choe v. Torres, No. 06-56634 (4-29-08). The 9th (Kozinski joined by Rawlison and Baer) uphold the extradition of a Korean businessman on one count of bribery of a public official. The 9th vacated one count due to lack of probable cause (the magistrate's order had no finds of facts supporting that count). The 9th also found that the offense -- bribery -- was recognized by both the US and Korea. There was no statute of limitations issue because the petitioner had secretly and illegally fled the jurisdiction.

U.S. v. Arnold, No. 06-50581 (4-21-08). The 9th decides whether offices at LAX may examine the electronic contents of a passenger's laptop without reasonable suspicion. The district court said "no." The 9th (O'Scannlain joined by Smith and Mosman) reverse and permit the search. The defendant was returning from overseas and going through Customs. The Customs agent had him turn on his computer, where icons appeared titled "Kodak Memories" and "Kodak Pictures." These revealed nude photographs of nude women. A more thorough search revealed photos of child pornography. The district court suppressed, finding that search was without reasonable suspicion. The 9th overturned, holding that reasonable suspicion was not required at the border, that the computer was not damaged, and that the computer was not like a human mind, but closer to a closed container.

U.S. v. Shi, No. 06-10389 (4-24-08). A disgruntled sailor, demoted from cook to deckhand, and beaten, murdered the captain and first mate and seized control of the foreign vessel. The sailor was eventually overcome (after 2 days) and locked in a cabin. The ship then set sail to Hawaii for help. Intercepted by the Coast Guard (thinking they might be seeking to illegally land), the Coast Guard quickly ascertained what was going on, and took control of the defendant. The question is whether there is jurisdiction over this foreign vessel in international waters for purposes of prosecuting the defendant. The 9th (O'Scannlain) answers "aye aye." Under the statute 18:2280 (bet that is a rare one), the U.S. has obligation under the Maritime Safety Act, and stopping piracy and maintaining order is one of them. The defendant should have known that any nation would have sought to arrest him, and therefore, he was on notice (a nexus tie) that the U.S. could seize him. That was done here. There were also no Miranda violations nor illegal searches of bunks (a warrant was requested and received). The sentence was reasonable (a departure down to 36 years).

U.S. v. Aguila-Montes De Oca, No. 05-50170 (4-28-08). Defendant won the overly-broad categorical war, but lost his own modified battle when it came to determining, under the Guidelines, whether California's residential burglary statute was a crime of violence. The 9th has already held that the state burglary statute broadens the Guidelines' generic category of burglary because the entry need not be unlawful or unprivileged. Rodriguez-Rodriguez, 393 F.3d at 857. Left undecided, and for another day, was whether the statute, encompassing liability as an accessory after the fact, was overbroad. This would happen if aider and abettor liability stretched to cover an accessory. Unfortunately for the defendant, under a modified categorical approach, he had plead guilty to a count that had facts that admitted unlawfully entering a dwelling house. The offense was a crime of violence under the Guidelines, but only because the plea proved it.

U.S. v. Mara, No. 07-30102 (4-28-08). One can lose acceptance for continued criminal acts, even if unrelated to the plea of conviction. Here, defendant plead guilty to being a felon-in-possession. While awaiting sentencing, he got into a fight in jail. This altercation led the court to determine that the defendant had failed to accept responsibility, and so he lost the two points. The 9th had previously held that continued criminal conduct related to the offense plead to could lead to denial of acceptance; this goes a step further, and allows for denial even if the continued criminal conduct is different in nature, character or degree. The 9th aligns with eight of the nine circuits that have considered this. The only conflict is with the Sixth. See U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).

Case o' The Week: The First Plus the Fourth Plus the Fourth Plus the Ninth = 0, Arnold

It was a grim week for the Fourth Amendment. In Virginia v. Moore, __ S. Ct. __, 2008 WL 1805745 (Apr. 23, 2008), the Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Id. at *8, decision available here. In other words, under the Fourth Amendment a cop can search you for a petty offense that is merely cite-able, not arrest-able, under State law.

Not to be outdone, the Ninth issued an extraordinarily disappointing decision that takes chunks out of both the First and Fourth Amendments in one fell swoop. See United States v. Arnold __ F.3d __, 2008 WL 1776525 (9th Cir. April 21, 2008), decision available here. In Arnold, the Ninth gives carte blanche to Customs for laptop searches at international airports -- without even "reasonable suspicion." This brief decision on some tremendously important issues merits a much-closer look by an en banc panel.

Players: Great order by D.J. Dean Pregerson is reversed by Judges O’Scannlain and Milan Smith.

Facts: Michael Arnold arrived at LAX after spending three weeks in the Philippines. Id. at *1. After Customs discovered his laptop it ordered him to fire it up. Id. A Customs agent found a digital picture of two nude women (?!?), which merited a call to a supervisor and a more extensive search – ultimately producing child porn. Id.

Arnold was charged with transporting and possessing child porn. CD Cal. District Judge Dean Pregerson suppressed the search in a very thoughtful order. See United States v. Arnold, 454 F.Supp. 999 (C.D. Cal. 2006) (ord.) The government appealed.

Issue(s): “We must decided whether customs officers at Los Angeles International Airport may examine the electronic contents of a passenger’s laptop computer without reasonable suspicion.” Id. at *1.

Held: “[W]e are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” Id. at *4.

Of Note: This short opinion churns out many sweeping constitutional holdings with little or no analysis: it cries out for en banc review.

One Fourth Amendment holding is that there isn’t an expectation of privacy in a laptop akin to that in an office. Id. at *5. This assertion will be startling news for the hordes of Silicon Valley folks flying from the Ninth Circuit to the Pacific Rim. Turns out they don’t have an expectation of privacy for the location of Google’s new server farm, the I.P. of Intel’s latest chip design, or the share price for the Microsoft-Yahoo deal, if that data is on their laptop – though they do if the data is in their office. Who knew? As was true in Kelley and Forrester, in Arnold the jurisprudence of the Ninth is decades behind the realities of the most technologically-advanced Circuit.

Moreover, the decision doesn’t grapple with the very real First Amendment concerns at issue when Customs agents rummage through intensively private laptop data. Instead, it summarily adopts a particularly unpersuasive Fourth Circuit (?!?) decision, Ickes. Id. at *6. In the Ninth, the First deserves more than two paragraphs parroting the Fourth.

How to Use: A ND Cal AUSA once candidly admitted that she had Customs troll for single men coming back from Asia with laptops at SFO – these passengers earn an automatic referral to Secondary and an order to boot-up. Since the Ninth guts First and Fourth Amendment protections in Arnold, what say we try the Fifth Amendment? Defenders in districts with international airports should start generating stats and seeking discovery for an Equal Protection challenge on the methodology used by Customs for these laptop searches.

Also, what happens when a passenger is ordered to reveal a password to enable a laptop search? (Like a traveler who believes more in the protections of TrueCrypt (right), that of the Constitution). Isn’t the compelled disclosure of a password “testimonial” – and therefore a Miranda disclosure? At least one magistrate thinks so. See In re Boucher, 2007 WL 4246473 (D. Vt. 2007) (“Entering the Password is Testimonial. Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”)

For Further Reading: An informal survey by the Association of Corporate Travel Executives revealed that almost 90% of its members were not aware that Customs could search their laptops and confiscate them without reason. See New York Times article here. This is probably why the Association filed an amicus brief in support of Arnold, as did Stanford’s Electronic Frontier Foundation. See Times article here. Some heavy-duty amicus support, for a privacy interest not even acknowledged in the Arnold decision . . .


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment

The first step to fair and efficient implementation of the retroactive amendment to the crack drug quantity guidelines is appointment of counsel, as has occurred in most Districts. Professor Berman reports this morning here that some judges are refusing to appoint counsel for prisoners sentenced for crack crimes, leaving them to litigate for themselves against the Department of Justice’s cramped view of the sentencing judges’ discretion under 18 U.S.C. § 3582(c). During the hearings leading to the retroactive amendment, federal defenders, including myself, provided testimony before, during, and after the Sentencing Commission retroactivity hearings emphasizing the importance of counsel in assuring smooth administration and fair implementation of the amendment. Aside from administrative considerations, the complexities of the law and the need to consider new facts should require appointment of counsel.

Background To Retroactivity Of The Crack Amendment

As reflected in the Sentencing Commission’s reasons for the amendment (here), the amendment reducing the offense level by two for quantities of crack is only a partial remedy for the institutionalized over-incarceration resulting from the 100:1 powder/crack ratio. For the fourth time, the Commission has called for Congress to change the 100:1 ratio in the mandatory minimum statute; the Commission’s amendment is an intermediate step that only somewhat lessens the unnecessary incarceration by adjusting down the offense levels geared to drug quantity by two levels, pending congressional action on the ratio itself. Congress did not block the amendment, which became law on November 1, 2007.

Following the effective date of the amendment, the Commission requested comment on whether the amendment should be retroactive. Arizona Federal Public Defender Jon Sands submitted a letter on behalf of Defenders that included reference to the importance of counsel in smooth and fair implementation of the amendment (here), which was elaborated in written submissions prior to the hearing (here) and during the testimony (here at 58-78). In response to Commissioner Steer’s request regarding the FPDs’ plans for implementing the amendment, we provided a post-hearing submission detailing the approach to identifying clients, obtaining representation, and litigating § 3582(c) motions (here).

On December 11, 2007, the Commission voted to make the amendment retroactive. Along with retroactivity, the Commission provided commentary regarding implementation of the new guidelines. Attorneys need to parse the relevant statutes and the commentary to determine whether and to what extent commentary may be helpful or harmful to clients and whether adverse commentary conflicts with statutes or guidelines under Stinson. The FPD Sentencing Resource Counsel and others have provided support regarding the complex legal theories for the wide spectrum of fact patterns qualifying for a potential reduction in sentence.

Counsel Under The Criminal Justice Act

The pre-Booker case law makes clear that the District Courts have abundant discretion to appoint counsel under the Criminal Justice Act. We can hope that most courts will see the practical necessity of defense counsel. In the protocol the FPDs presented to the Commission based on the 1995 marijuana retroactive amendment, most cases were resolved with agreed dispositions negotiated between prosecutor and defender – in our District, 121 orders were signed on the first day the amendment became effective. This protocol would obviously be impossible without involvement of defense counsel: the prospect of prosecutors dealing with unrepresented prisoners would raise serious ethical questions. During the first appearance on the crack charges, the prisoner routinely requests to proceed through counsel. In the absence of a fully advised waiver, how can a prosecutor interact with an unrepresented prisoner regarding the judgment previously entered with counsel representing the prisoner?

Under the circumstances of the crack amendment, especially the complexity of the legal issues, the CJA statute should be construed as making appointment mandatory. Under 18 U.S.C. § 3006A(a)(1)(A), representation “shall” be provided to any financially eligible person charged with a federal felony. The § 3582(c) motion is under the same case number – the prisoner is charged with a federal felony, and this proceeding relates directly to quantum of punishment imposed under that judgment. And this is not mere discretionary leniency: the Commission has found that the original sentence was based on a guideline range higher than necessary to accomplish the purposes of sentencing, and Congress has required consideration of § 3553(a) factors in deciding the motion.

Constitutional Dimensions To The Need For Representation

For those District Courts that express reluctance to appoint counsel for litigation of § 3582(c) motions, we can point out that, under the post-Booker sentencing regime, the CJA should be construed to require appointment of counsel or the Constitution requires appointment based on at least three separate theories, each based in Supreme Court governing authority.

First, under the Due Process and Equal Protection Clauses, the 2005 case of Halbert v. Michigan established that, even if there is no Sixth Amendment right to appellate review, Congress, having established an avenue for review, “may not ‘bolt the door to equal justice’ to indigent defendants.” In Halbert, the state refused to appoint counsel for defendants who wanted to appeal from guilty pleas, including Mr. Halbert, who claimed “his sentence had been misscored” and that he needed counsel to correct the error. Justice Ginsberg, writing for the Court, held that basic fairness required appointed counsel based on the complexities of the law, the difficulties of litigating from prison, and the practical consideration that many prisoners are poorly educated, mentally ill, and otherwise ill-equipped to represent themselves. These same factors apply to § 3582(c) motions.

Second, under the Sixth Amendment, the previous cases regarding the right to counsel on § 3582(c) motions do not address key Supreme Court precedents and have been factually superseded by post-Booker issues. In Mempa v. Rhay, the Supreme Court held that Gideon and its progeny “clearly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” In Mempa, the Court held that the Sixth Amendment right to counsel applied at a deferred sentencing proceeding. “Substantial rights” are at issue where the Commission has determined that the guideline range was greater than necessary and that a potential reduction of years of incarceration – the Commission estimates an average of 27 months – is at stake when the District Court decides the motion. And the Supreme Court recognized in Glover, in evaluating an ineffective assistance of counsel claim based on Guidelines sentencing, the defendant establishes prejudice if there was any guideline error to the defendant’s detriment.

Booker also changed the legal context by eliminating the portion of the sentencing appeals statute making the Guidelines mandatory. In its place, the Supreme Court in Rita outlined the necessary reasonableness review, which is predicated on a correct initial assessment of the applicable guideline range. Since Rita, the Court in Gall and Kimbrough expanded on the sentencing judge’s authority to consider sentences outside the applicable range, again emphasizing the need for an initial correct determination of the Guidelines factors. Given the explicit reference in § 3582(c) to § 3553(a), the same considerations are in play in the resolution of a motion based on the new applicable guidelines range following the retroactive crack amendment. The post-Booker cases emphasize the importance of establishing, in the first instance, correct calculations of the guideline range, which – for crack cases – is a new starting point but not necessarily the end point given the need to consider § 3553(a) factors.

The factual context for a Sixth Amendment analysis has also changed since Booker. In that case, the Court held that the federal sentencing guidelines, as implemented in every District since 1990, violated the Sixth Amendment right to jury trial. Prospectively, the Court remedied the Guidelines’ unconstitutionality by severing aspects of the Sentencing Reform Act to make the Guidelines advisory. Booker establishes that, for prisoners sentenced prior to January 12, 2005, the consideration of § 3553(a) factors required by § 3582(c) has never previously been undertaken. These factors, especially in light of Mempa and Glover, militate in favor of appointment of counsel under the Sixth Amendment.

Third, under the Due Process Clause, even if § 3582(c) motions are not deemed a critical stage of a criminal prosecution under Mempa, the balance of interests and risks of error require counsel as a matter of procedural due process. In the post-Booker era, virtually no prisoner can competently litigate the § 3553(a) factors without the assistance of counsel. As Justice Ginsburg pointed out in Halbert, prisoners suffer from a number of deficits that interfere with the ability to effectively advocate for themselves. On a motion to be decided based on § 3553(a) factors, the litigant would have to be conversant not only with the record at sentencing, not only with any intervening aggravating or mitigating factors, but also with the effects of Booker, Kimbrough, and Gall. The motion to reduce, according to the new commentary, involves considerations of dangerousness and post-sentencing conduct that require investigation by counsel to address, and, if necessary, to rebut prosecution arguments based on these factors. With an average of over two years at stake, and no countervailing legitimate interest in a sloppy and incomplete presentation to the court, the balance of interests would require counsel under the standard articulated in Gagnon v. Scarpelli:counsel is required if the reasons for a mitigated disposition “are complex or otherwise difficult to develop or present.”

Counsel Is Essential For Fair Implementation Of The Crack Guidelines

The balance of interests, especially given the length of incarceration at issue and the complexities of the federal Guidelines system, require counsel’s involvement to assure efficient implementation of the retroactive amendment and basic fairness to the individual prisoner. Based on discretion, most District Courts are appointing counsel because, as noted in Halbert, counsel’s involvement, by making applications easier to comprehend and more efficient, is helpful both to defendants and to the courts. The FPD’s Sentencing Resource Counsel have addressed counsel issues and, with potential assistance from volunteers on the Criminal Justice Act panel, Defenders should be prepared to litigate, if necessary, the appropriateness of counsel’s participation, both on statutory and constitutional grounds. As Judge Barbara Lynn from Dallas told the Detroit Free Press, “The government is represented by counsel; I’m making sure the defendant has counsel, too.”

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon