But this isn’t meant as a diatribe about the sentencing guidelines, and so we return to Shawn’s issue. Shawn did everything he could think of to make sure he had a complete understanding of his client’s background. He asked the client. He checked his criminal background (the client had a common name, making it difficult to determine if he had the right guy). He asked his client again. Shawn was satisfied that he had done his due diligence.
Shawn also appreciated how the federal sentencing guidelines worked:
The Guidelines are essentially a big grid which takes into account the crime charged as well as the defendant’s criminal history to arrive at a sentence. It sounds simple, and in reality, once you get the hang of how to manipulate the Guidelines, it can be. But the key to successfully doing that is information.
I don’t think Shawn means the words “manipulate”, but rather how to use the guidelines to determine the proper sentence range. Manipulate suggests that the guidelines can be played, and while a strong understanding of the interplay of the various guidelines can enable a lawyer to fight for a more favorable application or a departure (a showing the guideline considerations do not adequately take the clients case or circumstances into account), the guidelines cannot be “played”.
Comfortable with his information, Shawn’s client takes the plea. And when the Presentence Report appears, shock and dismay. The client got body-slammed for 140 months extra. That’s right, 11 years, 8 months more than he thought. Shawn is not happy. I bet the client isn’t too thrilled either.
What went wrong. Clearly, the client lied. By understating his criminal history, the client put his lawyer in the position of being the dopiest guy in the room. No lawyer wants to be in that position, and no client should want his lawyer in that position. And there is no question that the client’s failure to inform his lawyer was the root cause of the problem. But this is not the end of the story.
This apocryphal tale has a little ways to go. That a client has lied to his lawyer is nothing new. Even the most honest of clients doesn’t always understand his criminal history. They aren’t sure how a misdemeanor versus a felony plays out, and they tend to judge the significance of this past by the length of the actual sentence rather than the designation of the offense by potential sentence. When the plead to multiple charges and get a concurrent sentence, they feel it should only count as one crime. Of course, their feelings on the subject are irrelevant. It gets counted the way the guidelines say it gets counted, even if the client doesn’t think it should.
Another potential pitfall is one the offense level side of the grid, where the defense understanding of the guidelines calculations may well differ (and differ greatly) with the government’s. For example, a defendant in a drug conspiracy case may believe he’s only responsible for the quantity of drugs he knows about, while the government will view him as liable for a far greater quantity based on their theory of the conspiracy. The defendant may honestly know nothing at all about the additional drugs, but that’s the nature of conspiracy. And it may not be apparent from the indictment how vast the government sees the conspiracy. Without knowing this, the exposure for the defendant could change dramatically, and the defendant will have no clue why.
Much as I hate to say this, a step was missed. It was a critical step. A plea on behalf of his client cannot be based upon only the defendant’s view of the guidelines. I hesitate to suggest that this applies to Shawn’s situation, as there are differences in practice in different districts, and what happens in one may not happen in another. So this should be taken as suggestive, and not a criticism of Shawn per se.
Despite best efforts, and I have no doubt that Shawn was diligent on his side of the equation, a criminal defense lawyer must know that he cannot rely on his knowledge and understanding of the case and client alone. We’re just half the equation. But information from the defendant should never been considered sufficient.
There are two ways to take a plea, by agreement or an open plea. Rarely do I advocate for a plea agreement anymore, as the sentencing guidelines have generally eliminated any benefit to doing so. They limit what we can argue at sentence, while providing little if any “give-back” to the defendant. Many lawyers still use them because that’s what they’re used to. Once indoctrinated, they have a hard time breaking out of the mold. Un;ess there is some substantial benefit to a defendant, why agree? You can lose the right to argue for a downward departure, to appeal, to contest the PSR. If the government wants that, it has to pay for it.
But before a plea can happen, or even before I will allow a client to commit to a plea, there is one thing that I will always do. Always. I insist that the government set forth its position on the application of the sentencing guidelines to this client in this case in writing for the purpose of the defendant relying on them in reaching his decision to take a plea. How can a plea be “knowing, voluntary and intelligent” when a primary piece of information is missing (hint, hint, Shawn).
In the case of a plea agreement, the government’s full status of the sentencing ramifications of the plea must be included. If there is a disputed application, it must be noted in the agreement as being in dispute and subject to argument at the time of sentence. The government doesn’t like to do this, but usually will if the lawyer is insistent. And if they won’t agree to leave an application in dispute, then the defendant must decide whether the agreement provides sufficient benefit to be locked in. But locking in the government is the key. How can a client decide to take a plea without a full appreciation of its consequences?
In an open plea, meaning a plea to the indictment where there is no agreement between the defense and government as to anything, and where sentencing is to be a slugfest though guilt is determined, the government will still provide its position on the application of the guidelines in writing in something called a Pimentel letter. United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991). While the defense may not, and need not, agree with the government’s view of how the guidelines should be applied (including the criminal history points), we need to know what the government’s position is. Before a decision is made.
The government, like the Probation Officer, has access to information about defendants that criminal defense lawyers do not. Our clients may lie to us, but the government doesn’t look to our clients for information. They get it themselves. For some odd reason, they don’t trust defendants to be honest and accurate. But this is our avenue to information that would otherwise smack us upside the head later. Shawn got smacked upside the head. It clearly hurt.
Mark Bennett (ironically) posts about how some V6 lawyer who had been retained by one of his client to handle a federal case, and was clearly beyond his knowledge and skill level. Or as Mark puts it, waaaaaaaaaaaaaay over his head. There are lawyers who have no business taking cases for which they are not qualified. One can blame the client for picking a bad lawyer, but again, clients’ judgment can’t be trusted. It’s tough to do the best for your client. But that is our obligation, even when our clients have lied to us.
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In my defense, there were considerable advantages gained by us and concessions made by the government for this particular plea agreement. For example, the mandatory minimums were GREATLY lowered. I agree with you that in a normal case, there is usually no need to use a plea agreement. However, in this case, there was a 15 year advantage.
Secondly, I suppose practice in the SDNY is different than the NDTX. There will be ample time for my objections etc… Additionally, the judge before which we are appearing does not accept FRCrP 11c(1)(C) agreements, and there wasn’t going to be a 11c(1)(B).
I tried (perhaps unsuccessfully) to make clear that I wasn’t criticizing you since I didn’t have all the specifics about your situation and, as noted, there are practice differences between various districts. While time for objections to the PSR is important, I don’t know how you object to the criminal history level, assuming it has been calculated correctly, with any success.
There are arguments to show that it doesn’t accurately reflect the defendant’s criminal history, but I assume that your plea agreement precludes you from seeking a downward departure. That leaves you between a rock and a hard place at this stage.
I know you’re not criticizing me. You wouldn’t do that. Bennett might call me an asshole, but that’s another story.
It appears there may be issue as to whether some, but not all, of the prior convictions are in fact my client’s. So, of course proper objections will be lodged. Also, I can move for downward departure if I want. I never deal that away.
By the way, why does my reference to FRCrP 11(c)(1)(B) turn out to be a smiley face?
lol. I thought you were trying to tell me that you were sneakily trying to back door your client out of the plea agreement if he gets hit with the extra 11 years. I guess that a “B” with an “end parentheses” makes a smiley with sunglasses. I never knew that before.
Study the application notes to the guidelines carefully. I’ve found mistakes made in calculations before. Also, around here, the government never allows the defendant to argue for a departure in a plea agreement, so that’s good news. Because of the way the guidelines double and triple count certain convictions, based on terms, age, probation status, multiple count pleas, there may well be a good argument for departure on the calculations overemphasizing prior convictions. “Hearland” is the best thing Stacey Koon ever did for America.
Hey, I just held the mirror.