It did not take long for the Supreme Court's recent decisions to have an effect. This past week, I wrote about two cases handed down in March by the Supreme Court that could alter how closely courts scrutinize a lawyer's advice on whether to accept a plea bargain. Four days after my blog post, the Fifth Circuit issued an opinion citing the two Supreme Court cases, vacated a district court order, and remanded the case for an evidentiary hearing on the issue of a lawyer's alleged ineffective advice in connection with a proposed plea bargain. As I forecasted in my previous blog post, the scrutiny on a lawyer's plea bargain advice begins.
In U.S. v. Rivas-Lopez, the Fifth Circuit reviewed a district court order denying Rivas' 2255 motion raising claims of ineffective assistance of counsel. After having lost his jury trial and subsequent appeals, Rivas filed a 2255 motion for habeas relief, alleging his lawyer overestimated his sentencing exposure under a proferred plea deal. Rivas claims the faulty legal advice led him to reject the offer and stand trial, where he was convicted for several counts associated with an alleged harboring of aliens. Rivas claims he rejected the plea offer because his lawyer advised him that he was facing a sentencing guideline range of 262-327 months if he pled guilty under the proffered deal; he alleges the lawyer told him several guideline enhancements applied in his case. Feeling his exposure was too high to plead guilty, Rivas went to trial.
After trial, however, the trial court decided that Rivas' guideline range was much lower than previously estimated by Rivas' lawyer. It appears that if Rivas had accepted the original plea offer, the guideline enhancements would not have been imposed, he would have received a 3-level reduction for acceptance of responsibility, and his guideline range would have been 87-108 months. Basically, Rivas' complaint is that his lawyer overestimated his sentencing exposure by 154-240 months! After receiving a sentence of 188 months after trial (about 100 months higher than he probably would have received if he pled guilty), Rivas is not too happy.
The government responded to Rivas' 2255 motion with an affidavit by Rivas' lawyer, stating that it was impossible for the lawyer to have known the trial court would not impose certain sentencing guideline enhancements. In short, they allege the lawyer gave his best advice possible at the time. Moreover, the government argued that Rivas could not meet the "prejudice" prong of habeas review, because he did not prove that he would have accepted the plea offer had his lawyer accurately estimated his sentencing exposure. The trial court accepted the government's argument, decided that Rivas failed to meet the habeas standards required to obtain relief, and denied his 2255 motion.
Despite the trial court also denying a certificate of appealability, the Fifth Circuit accepted the case for review, and carefully scrutinized what transpired between Rivas and his lawyer after receiving the proffered plea deal. The court stressed the import of this issue by noting that "providing counsel to assist a defendant in deciding whether to plead guilty is '[o]ne of the most precious applications of the Sixth Amendment.'" It appeared to the Fifth Circuit that counsel "overestimated the sentence Rivas would have received if he had pleaded guilty." The court decided to remand the case for evidentiary hearing, as there were insufficient facts to determine the reasoning behind counsel's advice and whether Rivas indeed would have chosen a different path had the advice been different.
As a result, the case is headed back to the trial court for an evidentiary hearing to scrutinize the lawyer's performance. The attorney will have to explain, presumably under oath, the breadth of the analysis he conducted, the conversations with his client, and the following:
* "how counsel determined which enhancements would apply,
* "whether counsel investigated or weighed possible objections to those enhancements, and,
* "what information counsel knew about Rivas' conduct at the plea offer stage."
It appears from the opinion that Rivas' attorney has a reasonable explanation for the advice he gave. Nevertheless, the factual scenario in this case poses a rather complex array of issues in terms of the several sentencing enhancements that were possible and the multiple defendants who were involved in different aspects of the crime. Rivas' trial attorney has an interesting day ahead of him.
Of note is a footnote in the Rivas' opinion that offers a forecast of what's to come in this developing state of law. The Fifth Circuit, citing one of the Supreme Court opinions issued last month, notes the following:
"To facilitate the orderly growth of post-Cooper law, we note that plea discussions that ripen into plea offers, and then in turn, are accepted, rejected, or deferred as plea agreements by a district court (or properly withdrawn by a defendant), should be memorialized in writing as soon as practicable." (emphasis in original case)
This is an interesting comment by the Fifth Circuit court, in that the issue addressed in the Supreme Court's Cooper case involved the quality of the lawyer's advice concerning a proffered plea deal (see my earlier blog post). It is unclear at this point what type of written document should/would be created to "memorialize" the sum total of the lawyer's thinking, factual investigation, legal analysis and ultimate advice to the defendant about a proffered plea deal.
If a plea is later accepted, the plea agreement typically does not provide any estimates of the probable sentencing guideline range. In fact, most agreements (followed by a similar court admonition during the plea hearing) specify that his lawyer's estimate of a sentencing range is only an estimate and is not to be relied upon on deciding whether to plead guilty. Given this, what written memorialization should/can be drafted to cover the "Cooper" issue (i.e., that the lawyer rendered effective assistance in his advice concerning the agreement)? Where does this document go?
On rejected plea offers, the problem gets bigger. Since there is no plea agreement that specifies the defendant is not to rely on any sentencing estimate (and does not otherwise address sentencing enhancements), there is even less to document that a defendant is solely to consider the statutory maximum penalty. What document should/can be drafted to memorialize the lawyer's advice that led to the rejection of the proffered plea deal? How detailed does the "memorialization" need to be? And who should the document be given to?
While creating a written memorialization of advice on sentencing guidelines and other plea factors may not be in your practice now, it could be the message to all of us is that we may need to start thinking about this issue.