Taken to the Shed

You never want to have a court start its opinion in one of your cases like this:

After pleading guilty to a multiple-count indictment charging,inter alia, two independent firearms counts under 18 U.S.C. § 924(c), Jose and Abraham Beltran-Moreno benefitted from the district court’s erroneous construction of that statute at sentencing. They should have quit while they were ahead.

That's the lede from a recent Ninth Circuit case in which the defendants got a 35-year sentence. Harsh, but better than the mandatory minimum to which they were subject (40 years) and well below the recommended Guideline sentence (life). The sentence was apparently a mistake by the district court, sort of like the "bank error in your favor" card in Monopoly.

Inexplicably, they appealed. Thankfully for them, the Government didn't, so the Ninth couldn't fix the district court's error (thanks to a recent Supreme Court decision). All it could do was reject the arguments and affirm. But along the way, the judges took defense counsel to the woodshed:

The Beltrans’ trial counsel had the good sense not to object to the district court’s sentence, which — given that it was lower than legally permitted — was certainly better than they could have possibly imagined. Their appellate counsel,however, have exhibited anything but good sense. For reasons beyond our understanding, the Beltrans have appealed their sentences . . .

* * *

Counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law.

* * *

We hope that this case will serve as a strong warning for the defendants’ appellate counsel. Only by the unanticipated fortuity of Greenlaw, combined in Jose’s case with a failure to present persuasive arguments on the merits, have counsel avoided a disposition that would have raised their clients’ terms of incarceration . . .

* * *

While it is ultimately the client’s right to pursue an appeal, we seriously question the quality of counsel’s advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been. We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous. Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions. However, in the future, we caution counsel to be more diligent, for their own sakes and, more important, for their clients.

Ouch. That's going to leave a mark.

I have some sympathy for counsel. I've had clients who, no matter how many times it was explained to them, insist on appealing their case (sometimes even where they've waived that right!). But, if the opinion is correct, the arguments they came up with were worthy of an Anders brief, anyway, so I'm not sure why they subjected their clients to the danger of reversal and themselves to being benchslapped like that.