Wednesday, October 5th, 2011

No Need to Remand Me

United States v. Elbert, No. 10-72-cr (2d Cir. September 19, 2011)(Jacobs, Cabranes, CJJ, Kravitz, DJ)

A recent anomaly in circuit practice has been its treatment of cases where the district court did not provide a written statement of reasons for the sentence that complies with 18 U.S.C. § 3553(c)(2). In cases where appellate counsel files a merits brief, counsel can waive a remand for a statement of reasons. But, where counsel files an Anders brief, under United States v. Hall, 499 F.3d 152 (2d Cir. 2007), failure to provide a statement of reasons always necessitates a remand.

Until now. This decision abrogates Hall to the “limited extent that it uniformly require remand in these circumstances.” Hall was based on the court’s understanding that the statement of reasons “assists” the BOP and the Sentencing Commission “in the collection of data.” While that is “no doubt for the good,” its effect is to require appellate counsel to seek a remand when “a remand would be of no benefit for the client” or “the court.” All Hall does is “set[] the lawyer to work for the” BOP and the Commission, and “doing a futile job of it in any event.” Thus, the bright line rule of Hall “may undermine, rather than serve, the goals of vigorous representation” that underlie the Anders brief procedures.

In a case where the absence of a written statement could benefit the client, counsel can seek a remand. But a bright line rule is not necessary to effectuate this, particularly since there might be situations where a remand for a written statement of reasons would be “detrimental to a defendant,” such as where the statement would memorialize the defendant’s cooperation or other information he would not want disseminated. “Requiring a defendant’s lawyer to elicit such information goes against the grain of advocacy.”

Even in the context of an Anders brief, then, counsel should “make an independent judgment as to whether deficiencies in a written statement of reasons present a non-frivolous appellate issue.”

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