One Little Victory

If you're concerned about being a "winner," criminal defense is not the job for you. Most of your clients will be guilty (of something, anyway). Some will be aggravating to the point of distraction. The deck is stacked against you achieving a positive outcome for your client. That's doubly true on appeal, where various mechanisms are in place to uphold the lower court's rulings, even if they're wrong. So when it happens that you get a "win," even a little one, it's worth celebrating.

I got one today.

The case came to our office as a "cold record appeal," meaning that some other attorney represented the guy previously. That attorney had withdrawn or been fired, and the Fourth Circuit has asked us to take the case. Lots of times, these cases are also "cold" for another reason - they are utterly devoid of appealable issues, either due to a guilty plea, counsel's failure to raise certain issues, or both.

At first blush, this case looked like one of those. Our client had been stopped in a car with some cocaine and a gun. He pleaded guilty to what is known in the trade as a "924(c)" (for the part of the Code in which it is found) - possession of a firearm in connection with a drug offense. It's one of those offenses that has a mandatory minimum sentence, 5 years (60 months) in this case. Ordinarily, the recommended Guideline sentence for that offense is the mandatory minimum and that's what people receive.

There is an exception. If the defendant is a "career offender," his sentence is dramatically increased, based on the esoteric fact that the maximum sentence for a mandatory minimum offense with no stated maximum is life in prison. A person is a career offender if he has two or more prior convictions for a "crime of violence" or "controlled substance offense," as those terms are defined by the Guidelines. Following his guilty plea, our client was classified as a career offender, raising his minimum Guideline sentence from 60 months to 262 months - an increase of almost 17 years.

There was one problem with that classification - it wasn't right. The probation officer didn't notice. The AUSA didn't notice. Defense counsel didn't notice. Most important, the judge didn't notice. With his Guideline ranged bottomed out at 262 months, that is the sentence the client received.

When I first got the file and the transcripts in the case, I thought it was a dead bang loser. Guilty plea. No objection to the Guideline calculations. Within-the-Guideline sentence, which means a presumption of correctness on appeal. As I drilled down into the Presentence Report, however, I discovered that our client was not a career offender. Yes, he had prior convictions. But one of them was too old to count and another didn't qualify. I researched and discovered that the law in this area was fairly well settled and clear, so this might even be a big enough mistake to satisfy the plain error standard. It certainly impacted the guys "substantial rights" to be locked up for an extra 17 years.

I wrote the brief and submitted it to the Fourth Circuit. Shortly thereafter I got a call from the AUSA handling the appeal. He'd read the brief and agreed that it looked like our client was not a career offender. Would I agree to a joint motion to remand for resentencing in light of what I'd discovered? In my heart, I didn't want to - this was a good case and I wanted to push it all the way and get the win. But decisions like that aren't based on my desired outcome, but what is best for the client. In this case, it was definitely better to take the sure thing remand than take chances that the Fourth Circuit wouldn't be so kind. So the motion was filed and the case remanded.

Resentencing was today. I handed the case over to two of my trial-level colleagues, but went up to the hearing to see how it turned out. Everybody agreed that the correctly Guideline sentence was 60 months and that is what the judge imposed.

In a flash, our client had almost 17 years of his life at liberty restored to him. I had a chance to meet the guy, shake his hand, and wish him good luck. He was very appreciative of all we'd done for him, as you might imagine.

It was a wonderful moment. So often in my job, particularly in the past few years of Blakely, Booker, and now Rita confusion, there have been victories that were Pyrrhic at best. Sentences were vacated, only to have them reimposed in exactly the same way. It leads me to wonder sometimes exactly what the point of it all is. Then something like this comes along and it seems worth it.

All that, from my one little victory.