So says Senior Circuit Judge Gilbert S. Merritt of the Sixth Circuit dissenting in United States v. Luis Edwards (decided 7/14/2015). The sentence is 15 years for a first-time offender.
The defendant, Edwards, pleaded guilty to a drug conspiracy involving more than 500 g of cocaine and more than 28 g of crack cocaine. Even as a first time offense this would trigger application of a five-year mandatory minimum under 21 USC 841. The district court applied a four-level enhancement as an organizer or leader and also found that Edwards' challenge to this enhancement was frivolous, which caused the District Judge to deny a reduction for acceptance of responsibility, which almost always (in this case proves not always) goes along with the guilty plea.
The court's majority, Circuit Judge Julia Gibbons writing and joined by Circuit Judge Bernice Donald, gave the following and disturbing explanation for affirming the denial of acceptance of responsibility credits:
Edwards'trial counsel, instead of contenting himself with making legal arguments, which could not have been a basis for denying credit for acceptance of responsibility, made factual representations – apparently based on his client's statements to him – about the nature of the contacts among the participants. The district court concluded that these representations amount to frivolously contesting the facts, and we do not think this conclusion was clearly erroneous. Other than saying "that is what my client told me," Edwards'counsel presented no evidence in support of his factual representation that Ricky put Mendez in contact with Edwards or that another person had a more extensive role in coordinating the activities among the participants. The lack of evidence supporting the factual representations itself suggests frivolity.
It seems at worst that Edwards had a weak factual basis for arguing that the supervisor/organizer enhancement should not be applied to him. But there is no outright denial; it does not appear, even after a very close reading of the opinion, that Edwards at any point denies having made the phone calls at issue; rather, his counsel argues that they aren't as significant as they may appear and, therefore, do not support application of the enhancement. This seems like a reasonable argument, not a frivolous one, especially given some of the Sixth Circuit's pronouncements in precedential opinions, which this case is not, about defense counsel's duty to present vigorously arguments on their client's behalf.
Judge Merritt notes that the initial draft of the presentence report "did not contain a leadership role enhancement," an omission that very strongly counters the assertion that Edwards later challenge to it was frivolous. In addition, Judge Merritt reports that the revised presentence report also recommended a three-level reduction based on acceptance of responsibility. This also strongly counters the frivolous finding.
The upshot of all of this is that of a sentence is lengthened based on the trial counsel's decision that there was good grounds to challenge the leadership enhancement. It would seem that leaves Edwards with an ineffective assistance of counsel claim, since an election to advance a frivolous argument cannot, as a matter of law, constitute a reasonable tactical decision, and there is clearly prejudice to Edwards, since it appears that the acceptance of responsibility would have been granted and Edward sentence would have been less had the challenge not been mounted.
And so one might ask reasonably what has been achieved? The sentence of the district court judge has been affirmed, to be sure, but at the cost of feeding what appears to be a very well-founded ineffective assistance of counsel claim, which will consume additional judicial resources to achieve imposition of a sentence that should have been imposed to begin with.
And so we continue down the well-worn path to what end? Judge Merritt dissented fairly recently lamenting the "injustices that ar going on every day in the federal courts."
Robert L. Abell
www.RobertAbellLaw.com
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