[00:00:01] Speaker 04: Case 14-3074, United States of America versus Sylvan D. Abney, appellant. [00:00:09] Speaker 04: Ms. [00:00:09] Speaker 04: Murphy for the appellant, Mr. Apperson for the appellee. [00:00:14] Speaker 01: Good morning. [00:00:14] Speaker 01: Good morning. [00:00:25] Speaker 01: Sorry, I'll be ready in a minute. [00:00:29] Speaker 01: Of course. [00:00:30] Speaker 01: The bench up here is smaller. [00:00:35] Speaker 01: Please proceed. [00:00:37] Speaker 05: May it please the court? [00:00:38] Speaker 05: My name is Rachel Murphy. [00:00:40] Speaker 05: I represent Appellant Mr. Sylvan D. Abney, and I would like to reserve three minutes of my time for rebuttal. [00:00:47] Speaker 05: Mr. Abney is sitting in prison right now, serving a 10-year mandatory minimum sentence that he received on August 2, 2010. [00:00:56] Speaker 05: Had he received effective assistance of counsel and been sentenced just one day later, he very likely would not be in prison today. [00:01:04] Speaker 03: Let me ask you, we all learned in law school the phrase, hard cases make bad law, right? [00:01:12] Speaker 03: And this may be an example of this. [00:01:14] Speaker 03: I note that the government below did not oppose this, but they are now, presumably because it's going to be tough to find a rule to govern this. [00:01:24] Speaker 03: What's the rule that you would have us apply here? [00:01:29] Speaker 05: Your Honor, I think that this case actually fits comfortably within the four corners of Strickland, which is that counsel must act objectively, reasonably, based on the facts and knowledge counsel has before him. [00:01:40] Speaker 03: The rule I'm looking for is the ability of an attorney to forecast a change in law. [00:01:48] Speaker 03: On these facts, you're one day away from a drastically reduced sentence, and that's what makes this, at least for this judge, a hard case. [00:01:59] Speaker 03: But what's the rule that we would apply that would capture your client and yet not open the door to requiring attorneys to forecast the law? [00:02:14] Speaker 05: Well, while we do not think that this case requires any new rule to have a finding in favor of Mr. Abney, certainly at the point where Council is aware that this legislation has passed both Houses of Congress, Council sits down and reads its terms, so we don't have any concern, for example, about imposing a duty upon Council to monitor pending legislation or be aware of any possible legislation here. [00:02:38] Speaker 03: To me, it's not the fact... Everyone knew the FSA was... [00:02:42] Speaker 03: That's not science. [00:02:46] Speaker 03: It's Dorsey. [00:02:47] Speaker 03: It's knowing if there is going to be retroactivity, where does it apply? [00:02:52] Speaker 03: That's where, at least for me, it gets quite tricky. [00:02:58] Speaker 03: What should have been the proper period of time that a reasonable attorney, in your view, would have asked for a continuance? [00:03:05] Speaker 03: That's the sentencing date? [00:03:06] Speaker 03: That's the guideline date? [00:03:07] Speaker 03: I mean, do we know that? [00:03:09] Speaker 05: I certainly think that any objectively reasonable attorney would have moved for, at a minimum, a continuance to allow for that 10-day period for the bill to become law upon presidential signature, the expiration of that 10-day period. [00:03:22] Speaker 05: In Mr. Abney's case, that 10-day period actually only would have required an additional 4-day continuance out from his particular sentencing date. [00:03:30] Speaker 03: So write the rule for me. [00:03:32] Speaker 03: Here's the pen. [00:03:34] Speaker 03: You get to write the opinion. [00:03:35] Speaker 03: This is hypothetical, by the way. [00:03:38] Speaker 05: Right, of course. [00:03:38] Speaker 05: I won't let it go to my head. [00:03:40] Speaker 05: I think the rule would be that in accordance with Strickland's well-established principles that an objectively reasonable counsel must advocate his client's cause and abide by that overarching duty to advocate on behalf of your client. [00:03:53] Speaker 05: where that counsel is aware of this legislation that has just passed Congress and manifests a personal belief, which, as you stated, is not science. [00:04:02] Speaker 05: Everyone knows it's going to become law. [00:04:04] Speaker 05: And that counsel also takes the step of actually calculating the client's reduced sentence under that law. [00:04:10] Speaker 05: Counsel must take the de minimis procedural step that, in Mr. Abney's case in particular, post absolutely no downside risk of moving for a brief continuance so as to preserve your client's chances [00:04:23] Speaker 05: at a statutory mandatory minimum sentence that will be reduced by half. [00:04:28] Speaker 03: That's a long rule. [00:04:30] Speaker 03: That's a long rule. [00:04:31] Speaker 03: What you're saying is a reasonable attorney would have asked for a continuous beyond the signing date, right? [00:04:37] Speaker 05: I think, at a minimum, an objectively reasonable attorney would have asked for continuance to get up to that expiration of the 10-day period. [00:04:45] Speaker 03: But even there, what are the chances that Dorsey would come up? [00:04:50] Speaker 03: There's nothing on the face of the statute that deals with retroactivity, right? [00:04:54] Speaker 03: A reasonable attorney reading the statute wouldn't say, ah, this has a retroactive application. [00:05:00] Speaker 05: That is where we disagree with you, Your Honor. [00:05:02] Speaker 05: So certainly there was no express retroactivity provision, but I think it's clear that Strickland deals in reasonable probabilities, not certainties, and Strickland does impose upon counsel a duty to pursue more than those extremely obvious surefire success arguments that an express retroactivity [00:05:19] Speaker 05: provision would have provided. [00:05:21] Speaker 05: Here, counsel sits down and reads the law, and critically, there's Section 8 in the Fair Sentencing Act. [00:05:27] Speaker 05: And in Section 8, and I'm paraphrasing here, obviously, Congress effectively said to the Commission, get revised guidelines in accordance with post-FSA statutory mandatory minimums [00:05:37] Speaker 03: on the books right away as soon as... So if a council had sought, you're saying at a minimum a council had sought a delay, a continuance until the president signed, that would be minimum. [00:05:48] Speaker 03: What about seeing the 90-day provision for the guidelines? [00:05:52] Speaker 03: Wouldn't a reasonable council actually seek a continuance beyond that date? [00:05:56] Speaker 03: Because the guideline date might be a later trigger for retroactivity. [00:06:01] Speaker 05: I certainly think a reasonable counsel in an abundance of caution and prudence would likely have sought that 90-day continuance. [00:06:08] Speaker 03: Would it be unreasonable if the counsel had not done that? [00:06:12] Speaker 05: I think that's a harder case because of the text. [00:06:14] Speaker 03: Yeah, I'm asking you. [00:06:15] Speaker 03: We have to write a rule. [00:06:17] Speaker 05: Right. [00:06:17] Speaker 05: So I do actually think in that case, on these facts, it would have been unreasonable to seek that continuance out to November for the following reason. [00:06:27] Speaker 03: Again, there was no... I'm sorry. [00:06:30] Speaker 05: You're conceding, then? [00:06:31] Speaker 03: It would have been unreasonable. [00:06:33] Speaker 03: I'm sorry. [00:06:33] Speaker 03: Could you restate that? [00:06:34] Speaker 05: Sure, absolutely. [00:06:35] Speaker 05: I do think that counsel likely would have been objectively unreasonable in not taking that night, moving, excuse me, for that extra continuance out till November, the far end of the sentencing guidelines. [00:06:47] Speaker 05: But with that said, I don't think this is, this is not that case. [00:06:51] Speaker 01: Let me ask you, what's the basis for that position when the law as it existed on the day of sentencing was that the guidelines in effect on the date of sentencing shall apply? [00:07:04] Speaker 05: Well, and certainly for that reason, we think that at a minimum, any objectively reasonable defense counsel would have sought the 10-day continuance. [00:07:12] Speaker 05: And for Mr. Abney's case, there can be no argument that that obviously would have been enough here. [00:07:17] Speaker 05: A 10-day continuance, just meeting that baseline duty under Strickland, would have been enough to get Mr. Abney past the effective date of the Fair Sentencing Act. [00:07:26] Speaker 05: And as Judge Rogers points out, Your Honors, [00:07:28] Speaker 05: The background principle of the Sentencing Reform Act says that defendants receive the guidelines that are in effect as of the date of their sentence. [00:07:35] Speaker 05: And so when Congress in Section 8 said to the Commission, enact on an emergency basis as soon as possible, but no later than 90 days, guidelines that are going to conform to other guidelines provisions and post-FSA law, that meant necessarily that Congress is saying that those post-FSA guidelines are going to apply to all offenders. [00:07:56] Speaker 05: pre-act offenders and post-act offenders. [00:07:58] Speaker 05: And certainly that emergency instruction, that emergency direction would have made no sense whatsoever if Congress was saying out of the other side of its mouth, notwithstanding that instruction for all pre-act offenders for the next five years, because that's the statute of limitations on these crimes, pre-act offenders are going to be subject to pre-FSA law [00:08:17] Speaker 05: And this emergency instruction in the revised guidelines will mean absolutely nothing for these wide majority of offenders who are going to come through the pipelines over the next five years. [00:08:26] Speaker 01: I thought your first answer to Judge Griffith was that under Strickland, counsel had an obligation based on a plausible interpretation of a statute that both houses of Congress had passed to act on the basis of that plausible interpretation. [00:08:46] Speaker 01: Is that your argument? [00:08:50] Speaker 05: Excuse me. [00:08:50] Speaker 05: So no, I think the argument, and let me be clear, in the verbiage of Strickland is that there had to be a reasonable probability that the statute would be tied to sentencing date. [00:09:02] Speaker 05: And here there certainly was that reasonable probability when one looks at the text of the statute [00:09:08] Speaker 05: which we know counsel did here, when one realizes that no retroactivity whatsoever would have undermined the very goals of the Fair Sentencing Act itself, and when one thinks about the practical unlikelihood of the idea that Congress or the courts were going to reopen for sentencing decades worth of offender sentences. [00:09:28] Speaker 01: You're setting a very, as Griffith said, long and hard rule for counsel here. [00:09:35] Speaker 01: And that's why I'm trying to understand what [00:09:37] Speaker 01: you're arguing the standard is for counsel. [00:09:42] Speaker 05: So the standard is, and let me be clear, I think, you know, Strickland is a fact by, very fact-intensive case-by-case analysis. [00:09:49] Speaker 05: And here, you have to ask, as in all Strickland cases, was counsel's conduct objectively unreasonable? [00:09:55] Speaker 01: So that gets us into what is the proper standard of review and would it make a difference in evaluating the performance prong. [00:10:06] Speaker 01: of counsel's conduct here. [00:10:09] Speaker 05: So as the government points out, this court has declined to fix the standard of review. [00:10:13] Speaker 05: But as this court recently said in McDade, every single other circuit applies a de novo standard of review. [00:10:19] Speaker 01: The question is, would it make a difference here? [00:10:22] Speaker 05: I don't think it would. [00:10:22] Speaker 05: I think Mr. Abney wins under any plausible standard of review that this court would apply. [00:10:27] Speaker 05: With your honors, Grace, I'll reserve my remaining time for rebuttal. [00:10:30] Speaker 01: Well, basically, we've identified two standards. [00:10:36] Speaker 01: abuse of discretion and de novo. [00:10:40] Speaker 01: So the abuse of discretion here would be, how would you frame that rule? [00:10:49] Speaker 05: I don't think the abuse of discretion standard is actually what is at issue here. [00:10:55] Speaker 01: So you have the... What standard do you think this court applies? [00:10:59] Speaker 05: Well, I think as the government pointed out, there is no fixed standard of review, but every other circuit applies de novo review. [00:11:06] Speaker 01: I know, but we have remained agnostic on the point, because we said we haven't faced a case where it made a difference. [00:11:12] Speaker 01: And I'm trying to understand what your argument is as to why there was an abuse of discretion, or would it make a difference to the outcome if our review were to be de novo? [00:11:25] Speaker 05: I don't think it makes a difference to the outcome of this case, whether it's de novo review or some more exacting standard of review. [00:11:32] Speaker 05: But as to the abuse of discretion point, I don't think that is the applicable standard for the Strickland inquiry here. [00:11:39] Speaker 05: We do not ask, for example, whether a jurist would have abused its discretion in denying the continuance for purposes of the prejudice inquiry. [00:11:48] Speaker 05: We ask, rather, under Strickland, would an objectively reasonable jurist have granted this continuance? [00:11:54] Speaker 05: And under any of those standards, Mr. Abney does win. [00:11:57] Speaker 01: All right. [00:12:00] Speaker 01: We'll give you some time for rebuttal. [00:12:03] Speaker 05: Thank you. [00:12:10] Speaker 04: Good morning, Your Honor. [00:12:10] Speaker 04: Jay Apperson to the United States. [00:12:12] Speaker 04: May it please the Court. [00:12:14] Speaker 04: Your Honor, as a matter of law, experienced public defender is not constitutionally ineffective for having arrived at a legal conclusion that is supported by four justices of the Supreme Court, three circuit courts of appeals, and the United States Sentencing Commission. [00:12:34] Speaker 04: Reasonably effective representation does not include the requirement that counsel predict future development of the law. [00:12:42] Speaker 01: That's not the question here, is it? [00:12:45] Speaker 01: The question here, it seems to me, is whether Mr. Abney received unconstitutional, inadequate representation because his attorney failed to seek the benefit for his client. [00:13:03] Speaker 01: based on a plausible interpretation of the essay. [00:13:07] Speaker 01: He didn't have to be right, but had to be plausible. [00:13:12] Speaker 01: Couldn't be inconsistent. [00:13:14] Speaker 01: And he knew what the federal principle was on sentencing. [00:13:19] Speaker 01: And the prosecutor and the judge basically all acknowledged that. [00:13:25] Speaker 01: And yet [00:13:27] Speaker 01: counsel made no effort to get the judge to postpone this even though other counsel were asking for continuances and the government never contested that in the district court. [00:13:43] Speaker 04: Well, we may not have contested it but there's no record to support that. [00:13:48] Speaker 04: The only cases that they, if I may, in the first instance [00:13:52] Speaker 04: Council said, I've studied the law and concluded that it was not retroactive. [00:13:57] Speaker 04: That was the government's assertion at the hearing, the trial court's understanding of the hearing expressed by the trial court, and by Council. [00:14:03] Speaker 03: But they all recognized that retroactivity was at play, right? [00:14:06] Speaker 03: I'm sorry. [00:14:07] Speaker 04: They all recognized that retroactivity might be at play in some future time. [00:14:11] Speaker 04: With respect to the hearing, only in the context of future legislation. [00:14:15] Speaker 04: Council was very clear that future legislative, there may be a legislative [00:14:20] Speaker 04: the notion that anybody at that hearing understood or foreshadowed that the Supreme Court might create for the first time, as Judge Easterbrook points out in his analysis in Holcomb, this is the first time in Dorsey that the Supreme Court has ever applied a partial retroactivity. [00:14:41] Speaker 04: And they did so under an implied theory of congressional intent. [00:14:46] Speaker 04: despite the fact that there was no express retroactive provision. [00:14:51] Speaker 01: So let me ask you. [00:14:51] Speaker 01: Council knows that for 20 years, there's been an effort to reduce the disparity. [00:15:00] Speaker 01: And finally, the commission makes a recommendation, and Congress acts on it. [00:15:06] Speaker 01: Why wouldn't a reasonable council seek a continuance [00:15:12] Speaker 01: knowing that it's the law in effect on the date of sentencing that applies, and then at least his client is in a better position to argue he should get the benefit of that statute than if he's sentenced before that statute becomes effective. [00:15:35] Speaker 04: The law in effect at the time of sentencing, the only law in effect at the time of sentencing under the statutes, is the guideline range. [00:15:44] Speaker 01: My point is, if I have a client who's facing a 10-year mandatory minimum, and I know both houses of Congress have passed a statute that's consistent with what the President has said he wants, and so I know he's going to sign it, there wasn't any doubt about that. [00:16:02] Speaker 01: Why wouldn't reasonable counsel say to the district court judge, at least put the question before the district court judge, your honor, I'd like my client to get the benefit of this statute. [00:16:17] Speaker 01: And let's continue it. [00:16:21] Speaker 01: Would you agree to a brief continuance? [00:16:25] Speaker 01: And the judge might have said no, but at least the issue would have been posed. [00:16:29] Speaker 01: But counsel stood silent on it. [00:16:31] Speaker 04: Well, he didn't sign it. [00:16:32] Speaker 04: He said, I've looked at the act. [00:16:34] Speaker 04: It is not retroactive. [00:16:38] Speaker 04: That is the conclusion of three circuit courts of appeals. [00:16:41] Speaker 04: And until Dorsey. [00:16:44] Speaker 01: But see, you frame the question as to whether counsel could foresee what the Supreme Court decided in Dorsey. [00:16:54] Speaker 01: And I'm looking at it as Strickland says. [00:16:58] Speaker 01: What would reasonable counsel? [00:17:00] Speaker 01: have thought in terms of giving his client the best opportunity to benefit from this reduction in the disparity. [00:17:11] Speaker 01: Clearly, if I can say, his client is in a less beneficial position if he's sentenced before the statute takes effect. [00:17:20] Speaker 01: Maybe he has a better chance afterwards. [00:17:27] Speaker 04: Well, not as what counsel understood at the time of the sentencing hearing. [00:17:33] Speaker 04: At the time of the sentencing hearing, the provision for the guideline reductions... But we're talking about probabilities here, right? [00:17:40] Speaker 03: You're talking in terms of certainties, and you're right. [00:17:42] Speaker 03: But if you're talking about probabilities and how one best represents a client, how a reasonable attorney... And this is recognized in the Office of the Public Defender, right? [00:17:53] Speaker 03: They recognize that in their view at one point in time, this was a mistake. [00:17:57] Speaker 04: In hindsight, there's no question about that. [00:17:59] Speaker 04: Two years later, there's absolutely no question. [00:18:01] Speaker 04: When counsel got up at the hearing on the motion. [00:18:04] Speaker 03: Counsel, I find it hard to believe that you, if you were representing somebody in this situation, [00:18:11] Speaker 03: wouldn't ask for a continuous, just on the chance, right? [00:18:15] Speaker 03: The chance that you might get a benefit from it. [00:18:17] Speaker 03: Because what we're talking about, we're talking about a liberty interest here, right? [00:18:20] Speaker 03: We're talking about a period of time that your client is going to be in jail or not. [00:18:24] Speaker 03: And there's a chance out there that by getting a continuance, your client's going to benefit from it. [00:18:30] Speaker 03: A chance. [00:18:32] Speaker 03: The question that I'm struggling with is would a reasonable attorney try and take advantage of that? [00:18:38] Speaker 03: Or not? [00:18:40] Speaker 04: With respect, I think not, based on the fact that even the sentencing guideline reduction was not going into effect until November of 2010. [00:18:48] Speaker 04: And when you're talking about a continuance to the 10-day signing, it had absolutely nothing to do. [00:18:53] Speaker 04: Even if the sentencing, in other words... You're speculating. [00:18:57] Speaker 01: The judge might have said... No, no. [00:18:58] Speaker 01: With respect, Your Honor... Excuse me. [00:19:00] Speaker 01: I'm sorry. [00:19:00] Speaker 01: The district court might have said, well, [00:19:03] Speaker 01: We'd have to continue it until 90 days after the 10 days. [00:19:07] Speaker 01: And he said, no, the district court might have said, as a reasonable jurist, given you're talking about five years, and this man is already in jail. [00:19:20] Speaker 01: He's not out on the street. [00:19:23] Speaker 01: And it's not a big deal on my docket to continue this for 100 days. [00:19:29] Speaker 04: Well, with respect [00:19:31] Speaker 01: I mean, don't you want to give your client that opportunity, that that's what the district court might have done? [00:19:36] Speaker 01: That's what I don't understand. [00:19:38] Speaker 01: But Your Honor, until Dorsey, the only benefit he would have got... The district court itself said, I'd like to sentence you to less [00:19:47] Speaker 01: And of course, he did have the legal authority to do that, all right? [00:19:50] Speaker 04: Well, not with the mandatory minimums, no. [00:19:53] Speaker 01: Well, he said there was an exception even under the mandatory, how you can get out from under. [00:19:59] Speaker 01: But the district court, I'm assuming, said, I couldn't make the findings necessary to reach that position. [00:20:07] Speaker 01: So he said, I'm bound to give you 10 years. [00:20:11] Speaker 04: Well, the only provision was substantial assistance, and that's the reason why the sentence was continued for almost two years in the first instance, to allow the appellant to earn substantial assistance. [00:20:22] Speaker 04: He thumbed his nose at that, was arrested, violated a number of crimes, including drug use, violated the plea agreement. [00:20:27] Speaker 01: Well, we know what happened. [00:20:28] Speaker 01: Other than that, the government reported that cooperation did not work. [00:20:35] Speaker 01: And the other crimes, if I read the record, occurred in another jurisdiction. [00:20:40] Speaker 04: Well, there are a number of crimes. [00:20:41] Speaker 04: One, there were drug usage. [00:20:42] Speaker 04: So that's established by preponderance of the evidence, which itself is a violation of his plea agreement. [00:20:47] Speaker 04: And he was also charged with attempted murder in Maryland. [00:20:49] Speaker 04: That charge was later presumed as drugs. [00:20:51] Speaker 01: So let me ask you, when you read Strickland and subsequent cases in the Supreme Court, what standard of review do you think the Court is applying? [00:21:07] Speaker 04: I don't know the answer to that, Your Honor. [00:21:09] Speaker 01: Have you thought about it? [00:21:10] Speaker 04: No, because I think this case can be decided, as I suggested initially, as a matter of law with respect to the Council's conclusion that was supported by the justices of the Circuit Courts and the Sentencing Commission, which until Dorsey, this was a novel notion. [00:21:25] Speaker 04: The Supreme Court had never, prior to its decision in Dorsey, ever established a sentencing date for its mandatory minimum sentences. [00:21:33] Speaker 01: But that means you have to be sort of the ostrich with your head in the sand. [00:21:37] Speaker 01: This is a two-decade effort because [00:21:40] Speaker 01: The Sentencing Commission and finally both houses of Congress agreed that the disparity was unfair. [00:21:51] Speaker 04: Well, but even Dorsey admits that there's always going to be disparity. [00:21:54] Speaker 04: In fact, Dorsey said our decision today creates additional disparity. [00:21:59] Speaker 01: I know, but do you go for 100% disparity or 20% disparity? [00:22:03] Speaker 01: I mean, we're talking here about a counsel's obligation [00:22:09] Speaker 01: to argue on behalf of his client in a manner that gives the client the best advantage vis-a-vis what the district court is going to do with sentencing. [00:22:21] Speaker 01: That's all I'm getting at. [00:22:22] Speaker 01: Why wouldn't you make your best effort? [00:22:24] Speaker 01: And maybe the district court denies your request for a continuance. [00:22:27] Speaker 01: And maybe the Supreme Court down the road says it only applies to people who committed offenses after the effective date of the act. [00:22:35] Speaker 01: But all of that is unknown. [00:22:38] Speaker 04: Indeed, it is unknown, and it's unpredictable at that time because no court had ever, at Supreme Court or otherwise, had applied a novel theory of partial retroactivity by plucking out a standard from the sentencing guidelines realm. [00:22:52] Speaker 04: Background principle is what Judge Breyer, Justice Breyer referred to in Dorsey. [00:22:58] Speaker 01: Plucking that principle and applying it. [00:23:00] Speaker 01: So household would never be ineffective under the performance prong in the government's view. [00:23:06] Speaker 01: Unless it could point to, obviously, Supreme Court authority, but other authority indicating that, in fact, his client could benefit from a new statute? [00:23:19] Speaker 04: I don't know that that's required. [00:23:21] Speaker 01: All right, so let's back up what is required. [00:23:23] Speaker 04: Well, what is required is the reverse of whether it's appellant's burden to show that counsel was ineffective for not having predicted what the Supreme Court would do on a novel legal principle in Dorsey. [00:23:35] Speaker 01: I don't know where you get that standard. [00:23:36] Speaker 01: That's all I'm getting. [00:23:38] Speaker 00: Go ahead. [00:23:38] Speaker 00: It seems like the questioning from the bench raises an interesting question, which is really what standard are we looking at? [00:23:47] Speaker 00: Normally we say, was it objectively reasonable for counsel to have done something? [00:23:52] Speaker 00: Here we're also looking at, was there a reasonable probability [00:23:58] Speaker 00: that something would have changed in such a way that council somehow would have had to at least put that in play. [00:24:11] Speaker 00: let's say, not accepted as objectively reasonable. [00:24:16] Speaker 00: So in effect, does that change the standard? [00:24:20] Speaker 04: Well, I think the standard is not whether a particular position was arguable, as appellants have argued, but whether or not it was unreasonable not to take that position. [00:24:30] Speaker 04: And it is not unreasonable not to take that position in light of the fact that no court had ever come up with this novel legal theory to apply. [00:24:37] Speaker 04: In fact, Congress declined to make it expressly retroactive. [00:24:41] Speaker 04: They know how to make it retroactive, and they want to. [00:24:44] Speaker 03: And although, and as Judge Eastwood... Counsel, I doubt that you'll ever be in a circumstance where you'll need an attorney in a criminal matter, but... [00:24:51] Speaker 03: You'd watch your attorney to take that approach. [00:24:53] Speaker 04: We must avoid, as Strickland cautions, the hindsight. [00:24:58] Speaker 01: It's got to be judged on the time. [00:24:59] Speaker 01: We're looking at an attorney whose client is facing a mandatory 10-year prison sentence where, for decades, there's been this effort to reduce the disparity. [00:25:10] Speaker 01: And finally, Congress has acted. [00:25:13] Speaker 01: And counsel knows that and knows the president is going to sign the bill. [00:25:17] Speaker 04: And it does not provide for retroactivity. [00:25:20] Speaker 04: And it doesn't even provide for retroactivity. [00:25:22] Speaker 01: Shouldn't you raise that possibility with the district court by saying, please continue this until my client can get the benefit of this new state? [00:25:31] Speaker 04: In hindsight, that's lovely. [00:25:32] Speaker 01: And there's no question. [00:25:33] Speaker 01: No, I'm talking about clients, his attorney, thinking about how best to represent his client. [00:25:40] Speaker 01: What's the downside from the defense attorney's point of view of asking for a continuance? [00:25:46] Speaker 04: Because that's not the standard. [00:25:47] Speaker 04: The question is whether it's objectively unreasonable not to have raised the issue. [00:25:51] Speaker 03: Well, you have to figure in the downside when you're talking about reasonable activity. [00:25:55] Speaker 01: That's right. [00:25:55] Speaker 03: Hopefully you're thinking of downside. [00:26:01] Speaker 04: Yeah. [00:26:03] Speaker 04: Council looked at the statute. [00:26:04] Speaker 04: It did not provide for retroactive. [00:26:05] Speaker 04: No court had applied a retroactive standard before that. [00:26:09] Speaker 04: It holds counsel to an impossible task to have predicted dorsi. [00:26:14] Speaker 04: And the court also on the second issue, even if counsel was required to have made that point, found that they had not meant that Pellin had not met his burden with respect to whether or not the court would have granted the continuance. [00:26:27] Speaker 04: And under these circumstances, a Pellin cannot meet that burden. [00:26:30] Speaker 01: Well, under the Gantz standards that we've adopted, why wouldn't [00:26:37] Speaker 04: Well, because part of those factors under Gantt is the previous delays, this has been delayed almost two years, whether or not appellant contributed to the [00:26:51] Speaker 04: the need for the continuance and he clearly did. [00:26:53] Speaker 04: This should have been sentenced two years ago, three years ago. [00:26:55] Speaker 01: But this case, he's in jail and been in jail this entire time. [00:26:59] Speaker 01: So in terms of protecting the public. [00:27:03] Speaker 01: So I just want to be clear about what we're talking about. [00:27:05] Speaker 01: The other cases talk about where the defendant has moved for a continuance because he wants to further investigate his case or something like that. [00:27:15] Speaker 01: And the district court judge said this sentencing and hearing has been continued multiple times because of the defendant. [00:27:25] Speaker 01: Well, only because he was arrested. [00:27:27] Speaker 01: So it is his fault in that sense. [00:27:30] Speaker 01: But it's not quite like the other cases. [00:27:33] Speaker 04: Well, there's no question that the cases were different factually. [00:27:36] Speaker 04: But the issue, as Gantz said, whether or not they would be continuous. [00:27:39] Speaker 04: And Rule 32 requires that courts should impose sentence without undue delay. [00:27:44] Speaker 04: So it had already been delayed almost three years. [00:27:47] Speaker 04: It was, as the court indicated in making its ruling on this, [00:27:50] Speaker 04: It didn't know whether, had he been asked, it would have done so. [00:27:53] Speaker 04: But the appellant has a burden to show that the court would have granted that and didn't meet that burden. [00:27:59] Speaker 04: Would have? [00:27:59] Speaker 04: I'm sorry? [00:28:00] Speaker 01: Would have? [00:28:01] Speaker 01: I don't think that's the burden. [00:28:03] Speaker 01: You're talking absolute here. [00:28:05] Speaker 04: Irreasonable probability is the same standard on this question. [00:28:09] Speaker 01: I mean, the district court says it would like to impose a lesser sentence. [00:28:15] Speaker 01: So you have the district court on your side in that regard. [00:28:17] Speaker 01: And you say, Your Honor, you know this new statute. [00:28:20] Speaker 01: Could we just continue this for a couple of months? [00:28:24] Speaker 01: And as far as the district court judge, a sentencing continuing in terms of a disruption of a docket is a very different matter than continuing a trial. [00:28:34] Speaker 01: And there's no, what is the strategic theory [00:28:42] Speaker 01: I know your brief makes some speculations about the government would withdraw the plea agreement, but we're talking on distracting Strickland, a reasonable prosecutor here. [00:28:55] Speaker 04: Well, of course, we responded in our brief with respect to the strategic, because counsel on their brief, page 16 of the brief, said there's no conceivable reason of any strategic reason. [00:29:06] Speaker 04: So we were rebutting that. [00:29:07] Speaker 04: And we have offered that reason, I think, as a sound one. [00:29:10] Speaker 04: Pellin had clearly thumbed his nose at the extraordinary opportunity to have been out trying to earn substantial assistance, delaying his sentencing for two years, [00:29:20] Speaker 04: committing other crimes as the court noted when he said the appellant didn't meet his burden on this second question and the seriousness of the offense. [00:29:27] Speaker 04: If you look at the big picture here, this fellow got an extraordinary deal in his plea agreement. [00:29:32] Speaker 04: He came off a 924C gun count within five years on top of his drug dealing in a school zone. [00:29:38] Speaker 04: So he got an extraordinary deal and opportunity and the court in denying the motion expressly said the seriousness of the crimes and noted the school zone and the loaded gun. [00:29:49] Speaker 01: had decided that the appropriate sentence should be different. [00:29:56] Speaker 01: All right. [00:29:56] Speaker 01: And that's what counsel knew at the time. [00:30:01] Speaker 04: With respect, counsel, the Congress did not decide that it should be retroactive. [00:30:07] Speaker 01: They know how to... They said for a person who committed this offense, let's assume it's in the future. [00:30:11] Speaker 01: Congress says there's no mandatory 10-year minimum. [00:30:16] Speaker 01: Very clear Congress has made that determination. [00:30:19] Speaker 04: That's correct. [00:30:21] Speaker 04: Without retroactivity. [00:30:22] Speaker 04: Because there are costs on retroactivity. [00:30:24] Speaker 04: Even the guidelines were not going to be automatically retroactive. [00:30:27] Speaker 01: So your position is that the statute says directly, this statute shall not be retroactive? [00:30:34] Speaker 04: No, the statute does not say it does not have a retroactive. [00:30:36] Speaker 01: It's an open question, isn't it? [00:30:38] Speaker 04: Well, with respect, the 1 USC 109, the savings clause, Congress knows that that's there as well. [00:30:47] Speaker 04: And that was the Seventh Circuit decision in Fisher. [00:30:51] Speaker 04: Dorsey at the circuit court, the first one out of the box. [00:30:55] Speaker 04: It wasn't until the 11th Circuit in Rojas that moved the date in their theory that later picked up in Dorsey. [00:31:03] Speaker 01: What I'm trying to get you to focus on is you're representing a client and no court has decided this issue. [00:31:11] Speaker 01: And you're trying to put the best argument for your client. [00:31:14] Speaker 01: And why wouldn't you give the district court the opportunity [00:31:18] Speaker 01: to rule in a way that might benefit your client. [00:31:22] Speaker 01: That's what I don't understand. [00:31:23] Speaker 04: Well, because it would have been extraordinary that day before any court had come up with this novel legal theory. [00:31:28] Speaker 01: Well, the district court could have said that. [00:31:30] Speaker 01: All right? [00:31:32] Speaker 01: But counsel never gave the court the opportunity to say that. [00:31:35] Speaker 01: The court might have had a very different response. [00:31:38] Speaker 01: That's all I'm getting at. [00:31:40] Speaker 01: You seem to be arguing that you have to be able to predict [00:31:44] Speaker 04: I am arguing that and I believe that the rule of this court is saying that counsel is ineffective for not having predicted, that will be the rule. [00:31:53] Speaker 04: And I don't think that this court will adopt that rule. [00:31:56] Speaker 01: I noticed your 28-J letter cited a lot of cases from the 11th Circuit, but we have cases in this circuit where we say counsel doesn't have to be able to. [00:32:04] Speaker 01: that Congress is going to pass a statute in the future. [00:32:09] Speaker 01: So, I mean, that's no new law as far as this circuit is concerned. [00:32:13] Speaker 04: No, Your Honor. [00:32:13] Speaker 04: The unpublished opinion from the Eleventh Circuit dealt on this very point, whether counsel was required to raise a Dorsey [00:32:20] Speaker 04: argument and as that adds to our other case from the Eastern District of North Carolina in which the District Court... Well, the Sixth Circuit has taken a different point of view and the question is open here, so that's why I'm trying to press you to see. [00:32:33] Speaker 01: The government says you have to be able to predict accurately. [00:32:36] Speaker 04: Well, as far as I know, the only courts addressing this direct question have ruled that counsel is not ineffective for not raising a Dorsey claim. [00:32:44] Speaker 01: I can think of so many instances where they're open questions and your view is counsel has no [00:32:51] Speaker 01: reasonable obligation to present those issues on behalf of his client because there is no case out there that's been decided in his favor? [00:33:03] Speaker 04: Well, I don't think it's limited to just that there's no case. [00:33:06] Speaker 04: It is also the convoluted reasoning that [00:33:11] Speaker 04: I'm going to say convoluted. [00:33:12] Speaker 04: I don't want to be a peer criticizing the court's decision in Dorsey, but it was certainly novel. [00:33:18] Speaker 04: They plucked for the first time this background principle from the guidelines statute and now applied it to essentially impliedly revoking section 109. [00:33:33] Speaker 01: That's what counsel decided. [00:33:36] Speaker 04: I understand, but they didn't do so until two years afterwards. [00:33:39] Speaker 01: No, but the question was open. [00:33:43] Speaker 01: There was no question. [00:33:43] Speaker 01: And who knows, the court might have ruled in his client's favor. [00:33:47] Speaker 01: That's all I'm getting at, so why wouldn't you at least give the district court the opportunity to address that issue that might [00:33:56] Speaker 01: results in something that would benefit your client. [00:34:00] Speaker 01: That's my only point. [00:34:01] Speaker 01: You have to have a case, you have to predict accurately, or there's no obligation on counsel to raise an issue. [00:34:13] Speaker 04: I can see that I don't think you have to have a case for that. [00:34:16] Speaker 04: I think there has to be some reasonable basis to say that this is in the universe of possibilities. [00:34:21] Speaker 04: And I just don't think it was. [00:34:24] Speaker 01: I mean, counsel in Fisher noted that... The universe of possibilities, but clearly subsequent events has proved that it was possible. [00:34:33] Speaker 04: Subsequent? [00:34:33] Speaker 04: Of course it has. [00:34:34] Speaker 04: In hindsight... I know, but my point is... We're all here. [00:34:37] Speaker 01: You don't know. [00:34:38] Speaker 01: Exactly. [00:34:39] Speaker 01: So you just remain silent? [00:34:42] Speaker 01: I don't understand that position. [00:34:43] Speaker 04: Well, I think the extraordinary burden put on counsel that they would have to predict how Dorsey was decided for the first time in the history. [00:34:50] Speaker 01: But that's not the standard. [00:34:51] Speaker 04: With respect, I think it is the standard. [00:34:52] Speaker 01: I know. [00:34:53] Speaker 01: That's the way your brief is written. [00:34:54] Speaker 01: I understand that. [00:34:55] Speaker 01: That can't be the issue. [00:34:57] Speaker 01: That counsel has to be able to predict how the Supreme Court may decide a case in the future or there's no obligation to raise a question even though the question is open. [00:35:06] Speaker 01: And no court has cited in a manner contrary to his client's interest. [00:35:12] Speaker 04: Or even this court in Fields noted the peculiarity of this application partial retroactivity sentencing date. [00:35:19] Speaker 04: It said that the Dorsey produced its own degree of arbitrariness and the sentencing date is dependent on the vagaries of the judicial system has nothing to do with the goals of sentencing. [00:35:30] Speaker 04: Even opposed Dorsey, this court recognized it's a peculiar ruling. [00:35:35] Speaker 04: And to require counsel to [00:35:38] Speaker 04: predict in a crystal ball a peculiar ruling by the Supreme Court two years later is asked too much. [00:35:48] Speaker 01: All right. [00:35:49] Speaker 01: Thank you, counsel. [00:35:49] Speaker 04: I thank the court. [00:35:51] Speaker 04: We ask that the judgment of the district court be affirmed. [00:35:56] Speaker 01: Thank you. [00:35:57] Speaker 01: Counsel for appellant, give you a few minutes. [00:36:03] Speaker 05: I think the government's position in its briefings in here today makes clear the difference between the duty that Strickland imposes upon counsel to advocate for your client's cause and what a disinterested, detached observer, a court subsequently evaluating the facts and legal issues do. [00:36:22] Speaker 05: Here, Strickland says that counsel must act objectively and reasonably based on the facts known at the time, and here there was a reasonable probability or plausibility that the Fair Sentencing Act was going to be tied in some regard to the date of sentencing. [00:36:38] Speaker 05: And while perhaps, as the government notes, it was an uncertainty, that uncertainty does not excuse a total and abject failure to act on your client's behalf. [00:36:48] Speaker 05: And imposing upon Strickland petitioners the burden to show that somehow counsel needed to predict Dorsey in order for it to have occurred to counsel to move for a continuance, [00:36:58] Speaker 05: both heightens the burden unduly in Strickland and also waters down Strickland's Sixth Amendment protections, diluting those to essentially say that counsel need only pursue those surefire arguments of success. [00:37:12] Speaker 05: That's not what Strickland says. [00:37:13] Speaker 05: It requires a bit more than that on behalf of defense counsel. [00:37:17] Speaker 01: All right. [00:37:18] Speaker 01: Thank you. [00:37:18] Speaker 01: We'll take the case under advisement.