Saturday, August 6th, 2011

Summary Summary

At last – more summary orders of interest.

In United States v. White, No. 10-2631-cr (2d Cir. July 18, 2011) (summary order), the circuit vacated the district court’s decision denying resentencing under 18 U.S.C. § 3582(c)(2).

The case has a long procedural history. White originally rejected a plea offer that included one § 924(c) count while dropping another, but his attorney never told him that the second one carried a mandatory twenty-five year consecutive sentence. White ended up convicted after trial and facing a 570 to 622 month guideline range. On his habeas corpus petition, the district court concluded that his attorney had been ineffective, and fashioned an equitable remedy under which the court sentenced him under the final offer White had rejected – one count of crack trafficking and one § 924(c) count. This produced a 168-month sentence: 108 (a guideline sentence) on the crack count, plus 60 on the 924(c). The circuit upheld all of this back in 2007.

In 2010, the district court rejected White’s § 3582(c)(2) motion, holding that the crack portion of the sentence was not “based on” a guideline range affected by the 2007 ameliorating amendment. On this, White’s second appeal, the circuit reversed. White’s “sentence was indeed ‘based on’ the guidelines.” The district court’s equitable remedy to White’s attorney’s ineffectiveness produced a sentence “based on” the range reflected by the counts of conviction that survived the remedy – the range contemplated by the final plea offer. This, although not the range for the counts on which White was convicted after trial, was “designed to replicate the sentence” he “would have received had he accepted the plea offer.” Thus, White was clearly eligible for a § 3583(c)(2) reduction. On remand, of course, the district court still has the discretion to grant or deny the motion.

In United States v. Johnson, No. 09-3917-cr (2d Cir. July 6, 2011) (summary order), the court rejected a claim that the guilty plea did not satisfy Rule 11. While the plea failed to advise the defendant of his rights to compel witnesses, plead not guilty, counsel at every stage of the case, or the court’s obligations to order restitution and consider the guidelines, possible departures under the guidelines and the § 3553(a) factors, the circuit found no evidence that the defendant did not understand the charge or that he would not have pled guilty but for the court’s omissions.

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