Posts Tagged ‘career offender’

The law of the case doctrine did not apply to argument that prior state convictions were invalid.

Wednesday, July 22nd, 2009

Thomas v. U.S., 2009 WL 1856048 (11th Cir. June 30, 2009)

The ineffective assistance of counsel claim was not decided by “necessary implication.”

The defendant pled guilty to drug and weapon offenses and was classified as career offender for sentencing purposes. Defendant’s court-appointed counsel filed an Anders brief on direct appeal in which he argued that defendant had no basis for appeal and requested leave to withdraw. The defendant also filed pro se motion arguing ineffective assistance of counsel and that the District Court added criminal history points incorrectly. The court stated that ineffective assistance of counsel claims are generally not considered for the first time on direct appeal; and since the appellant’s claim that he was denied effective counsel was neither considered nor decided on his direct appeal, the law of the case doctrine does not bar its collateral review.

The law of the case doctrine also did not apply to argument that prior state convictions were invalid.

Similarly, neither the defendant nor his counsel presented the issue of his previous convictions on direct appeal or in the Anders brief and the government failed to cite any arguments to prove the state convictions were invalid. The Court of Appeals reversed the District Court’s denial of relief under Section 2255 based on the application of the law of the case doctrine with respect to both the ineffective assistance of counsel issue and invalid state conviction issue. The case was remanded for further proceedings.

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Posted in Ineffective assistance of counsel, Right to counsel, Sixth Amendment | No Comments »

Defendant not entitled right to counsel for Section 3582(c)(2) motion.

Monday, July 20th, 2009

United States v. Webb, 565 F.3d 789 (11th Cir. April 13, 2009)

The District Court properly denied defendant’s §3582(c)(2) motion.

The defendant was convicted of drug charges in 2000 and his base offense level was 38 under the Guidelines Section 2D1.1(c). However, being a career offender and having a category VI criminal history, his guideline range was 360 months to life imprisonment. The court departed downward to 264 months. In 2008, the defendant filed a Section 3582(c)(2) motion to reduce his sentence based on Amendment 706 of the Sentencing Guidelines. The government also filed a second Rule 35(b) motion and the court reduced the sentence to 228 years. Although Amendment 706 lowered defendant’s offense level from 42 to 40, his amended guidelines range still remained 360 months to life and therefore the court had no authority to reduce the sentence. As such, the court did not need to examine the Section 3553(a) factors.

The defendant was not entitled the right to counsel for a Section 3582(c)(2) motion.

The Constitutional right to counsel does not extend to the statutory reduction motions because they are more like “a continuation of a criminal case” than a habeas petition. The decision to appoint an attorney is left to the discretion of the District Court and here, the court did not abuse its discretion.

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Posted in Right to counsel, Sentencing Guidelines, Sixth Amendment, downward variance | No Comments »

Sentencing court’s disagreement with application of 4B1.1 career offender is not a factor the court may consider in determining a sentence.

Monday, April 27th, 2009

U.S. v. VAZQUEZ, 558 F.3d 1224 (11th Cir. 2009)

This was an appeal from a 180 month sentence following a remand. In Vazquez I the appellate court remanded because the 110 month was procedurally unreasonable as it was based on an impermissible factor, which is that the sentencing court disagreed with the application of the career offender provision 4B1.1. In this appeal the defendant argued that the sentencing court should have considered its disagreement with the career offender enhancement the second time. The defendant reasoned that U.S v. Kimbrough, which came out after Vazquez I, now made it permissible for the district court to consider its disagreement with career offender. The Court disagreed. Citing U.S. v. Williams which held the district court could not consider its views on §4B1.1 as a sentencing factor. It found that that Kimbrough was not inconsistent with Williams as §4B1.1 was a result of “direct Congressional expression.”

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Posted in Sentencing Guidelines, sentence enhancement | No Comments »

In a limited remand for resentencing, the sentencing court is restricted to only those issues specifically that form the basis of the remand, with some limited exceptions.

Monday, April 27th, 2009

U.S. v WILLIAMS, 2009 W.L. 817498 (11th Cir. March 31, 2009)

The defendant appealed a life sentence for possession of crack cocaine, imposed at resentencing following a remand by the court of appeals. In Williams I, the court had remanded to the district court directing the court to give reasons why a life sentence on this 26 year old defendant was appropriate. In this appeal, the defendant argued that the district court interpreted the Court of Appeal’s mandate too narrowly and failed to consider 3553(a) factors in order to impose a lesser sentence. In other words the district court treated the guidelines as mandatory. The Court rejected the challenge finding that this was a limited remand restricting the district court from revisiting issues already affirmed. As the district court complied by giving reasons which included failure to take responsibility for his actions, his lengthy criminal history, the need to promote respect for the law, deterrence and the need to protect the public.

The exception to the restriction on a limited remand.

The only exception to a limited remand is for an intervening change in controlling law. The defendant argued that the Florida Supreme Court had held recently that BOLEO conviction is not a forcible felony for the purpose of sentencing enhancement under Florida’s violent career criminal statute and for that reason the district court erred in classifying him as a career offender. The court already rejected this argument in United States v. Johnson, 528 F.3d 1318 (11th Cir. 2008), cert. granted, __ S. Ct.___, 2009 WL 425080 (Feb. 23, 2009), and although it is pending review in the U.S. Supreme court it is still controlling law.

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Posted in Resentencing, Sentencing Guidelines, sentence enhancement | No Comments »