Supreme Court Overrules Michigan v. Jackson and Presumption that Waivers of Right to Counsel After the Right to Counsel Has Been Invoked Are Invalid

In an opinion issued on Tuesday, Montejo v. Louisiana, --- S.Ct. ----, 2009 WL 1443049 (2009), the Supreme Court removed a layer of protection of criminal defendants against coercive and badgering police interrogations by overruling, Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404 (1986), in which the Court had held that “if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid.”

The petitioner in Montejo was arrested in connection with a robbery and murder and waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), while being interrogated by police detectives. A preliminary hearing was then held in which the court ordered an indigent defender to represent the petitioner. After the hearing, two detectives visited the petitioner and requested that the petitioner lead them to the murder weapon. The detectives read the petitioner his Miranda rights, and the petitioner proceeded to go along with the detectives, writing an inculpatory letter of apology to the widow of the victim in the process. Only following this excursion did the petitioner meet his court-appointed attorney and consult with him. The State admitted the petitioner's letter of apology against him at trial, and the petitioner was convicted of first degree murder and sentenced to death.

The petitioner appealed, arguing that the State's admission of the letter was error pursuant to Jackson. The Louisiana Supreme Court held that Jackson is not triggered unless and until a defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. It held that because the court had appointed the petitioner counsel while the petitioner stood mute, the petitioner had not sufficiently asserted his right to counsel. The Courtaffirmed his conviction and the Supreme Court granted certiorari.

Justice Scalia, writing for the majority, observed that some States require an indigent defendant to affirmatively request counsel before an appointment is made, while other States automatically appoint counsel upon a finding of indigency. Justice Scalia recognized the problem that "Defendants in States that automatically appoint counsel would have no opportunity to invoke their rights and trigger Jackson, while those in other States, effectively instructed by the court to request counsel, would be lucky winners." The majority rejected the petitioner's position that, once a defendant is represented by counsel, police may not initiate any further interrogation.

The majority proceeded to overrule Jackson and its holding that waivers of a defendant's right to counsel after the right to counsel is asserted are presumed invalid. The Court noted that it had created the presumption in Jackson by making an analogy to a similar prophylactic rule which the Court had established in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981), for the Fifth Amendment right to have counsel present at any custodial interrogation under Miranda. The majority held that where a defendant does not invoke his right to counsel, such as where a court appoints counsel in the absence of any request by the defendant,there is no initial election "that must be preserved through a prophylactic rule against later waivers." It noted that the benefits of the prophylactic rule of Jackson were outweighed by its costs in "hindering “society's compelling interest in finding, convicting, and punishing those who violate the law." The majority observed that, even without the rule of Jackson, defendants are still entitled to the protections of Miranda, Edwards and Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486 (1990). It held that "Jackson not only 'operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,' ... but also deters law enforcement officers from even trying to obtain voluntary confessions."

Justices Stevens, Souter, Ginsburg and Breyer all dissented.


Eleventh Circuit Holds No Right to Counsel in Sentence Reduction Proceedings Pursuant to 18 U.S.C. ยง 3582(c)(2)


        The federal judiciary has seen a surge in proceedings for reduction of sentences pursuant to 18 U.S.C. § 3582(c)(2), primarily as a result of Amendment 706 to the Guidelines, which amended § 2D1.1 to provide a two-level reduction in the base offense level for crack cocaine offenses, and which the United States Sentencing Commission made retroactive. However, in a blow to defendants’ rights in such proceedings, the Eleventh Circuit in United States v. Webb, No. 00-00066-CR-1-1 (11th Cir. Apr. 13, 2009) has held that defendants possess no mandatory right to counsel in sentence reduction proceedings pursuant to § 3582(c)(2) under either the Fifth or Sixth Amendments. The Court’s holding comes in spite of its earlier holdings that § 3582(c)(2) motions are a continuation of a criminal case, and that motions for reduction of sentence pursuant to a retroactive amendment in the Sentencing Guidelines are clearly a challenge to the original sentence.

            Webb was convicted in 2000 of conspiracy to possess and attempt to possess more than fifty grams of cocaine base and large quantities of cocaine hydrochloride, id. at 2. Under the Sentencing Guidelines, Webb’s base offense level was 38 under U.S.S.G. § 2D1.1(c), however the district court found that he was also a career offender and that his total offense level was 42, but the court departed downward from the recommended range of 360 months to life and sentenced Webb to 264 months. Id. at 2-3.

            In 2008, Webb filed a pro se motion to reduce his sentence pursuant to § 3582(c)(2) pursuant to Amendment 706. Id. at 3. The court denied Webb’s motion, finding that even if Webb’s offense level was lowered from 42 to 40 pursuant to Amendment 70, his sentencing range would still be 360 months to life, and he was therefore not eligible for a § 3582(c)(2) reduction. Id. Webb did receive a reduction in his sentence pursuant to Federal Rule of Criminal Procedure 35(a), however. Id. Webb appealed. Id.

            The Eleventh Circuit cited its previous decision in United States v. Bravo, 203 F.3d 778 (11th Cir. 2000), in which it stated that, in determining whether to reduce a sentence pursuant to § 3582(c)(2), a district court must first recalculate the sentence based upon the amended Guidelines, leaving all other original sentencing determinations unchanged. Id. at 6 (citing Bravo, at 780; United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)). The court then may choose to impose the newly calculated sentence or to keep the original sentence, and should make its choice in light of the factors set forth in 18 U.S.C. § 3553(a). Id. The Court also noted that U.S.S.G. § 1B1.10(a) provides that a sentence may be reduced only where “‘the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment…” Id. at 5-6 (emphasis added) (quoting U.S.S.G. § 1B1.10(a)).

Based upon these rules, the Court of Appeals found that the district court did not err in denying Webb’s § 3582(c)(2) motion since, although his offense level would have reduced his offense level from 42 to 40, this reduction would not have reduced Webb’s sentencing range, and the district court therefore had no authority to reduce his sentence or to consider the § 3553(a) factors.Id. The Court also held that Booker is “inapplicable” to § 3582(c)(2) motions for reduction of sentence because it is “‘a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission.’” Id. at 6-7 (quoting Moreno, at 1220–21).

More importantly, however, Webb also argued that the district court violated his Sixth Amendment right to counsel by refusing to appoint an attorney to represent him on his § 3582(c)(2) motion. Id. at 7. The Court noted that the issue of whether there was a mandatory right to counsel in § 3582(c)(2) reduction of sentence hearings was a matter of first impression for the Court. Id. at 8. Despite the fact that the Court acknowledged that it had found § 3582(c)(2) motions to be “‘a continuation of a criminal case’” rather than “‘a civil post-conviction action’” like a petition for habeas corpus, id. at 8-9 (citing United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (per curiam)), the Court followed the Fourth, Fifth, Seventh and Ninth Circuits’ view that a § 3582(c)(2) motion is merely a petition for a district court to exercise leniency to give a defendant the benefit of an Amendment to the Guidelines, rather than a challenge to the appropriateness of the original sentence, id. at 9 (quoting United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995)). “A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing.” Id. (citing Whitebird, 55 F.3d at 1011; United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996)). The Court continued on to hold that the Due Process Clause of the Fifth Amendment likewise did not provide a mandatory right to counsel in sentence reduction hearings pursuant to since Federal Rule of Criminal Procedure 43(b)(4) provides that such a hearing may be held without the defendant himself being present. Id. at 10 (citing Fed.R.Crim.P. 43(b)(4)). Lastly, the Court held that 18 U.S.C. § 3006A(c), which provides for a right to counsel in criminal proceedings, “including ancillary matters appropriate to the proceedings,” id. at 10 (citing 18 U.S.C. § 3006A(c)), provided no right to counsel, since it found that the right to counsel conferred by the statute extended “to matters that are part of the original action, such as sentencing and resentencing, but not to challenges to a defendant’s sentence, as would be the case in a § 3582(c)(2) motion.” Id. at 11 (citing Whitebird, at 1010–11).


Summary of Eleventh Circuit Criminal Opinions, Week of March 17, 2009

Our apologies for playing catch-up, but our summary of the primary, meaningful criminal opinions by the Eleventh Circuit will continue this week. Following is a summary of the decisions for the week of March 17, 2009.

In Salazar v. U.S., No. 07-13715, 2009 WL 684772 (11th Cir., Mar. 17, 2009), the Eleventh Circuit reversed the district court’s denial of the defendant’s motion pursuant to 28 U.S.C. § 2255 to vacate his sentence for possessing with the intent to distribute crack cocaine based upon ineffective assistance of counsel, where defendant’s counsel failed to call as witnesses at trial two persons who could have corroborated that the defendant denied possessing any cocaine at the time of his arrest, id. at *2.

The Court affirmed the district court’s denial of a reduction under the safety-valve provision pursuant to U.S.S.G. § 5C1.2 for a defendant convicted of conspiracy to manufacture and possess with intent to distribute marijuana plants in U.S. v. Cruz, No. 08-11625, 2009 WL 684789 (11th Cir., Mar. 17, 2009), observing that the defendant’s refusal to testify at sentencing left the district court with little ability to access his credibility and the defendant had failed to carry his burden, id. at *2.

In U.S. v. Valdex, No. 07-14721, 2009 WL 684751 (11th Cir., Mar. 17, 2009), the Court held that the defendant in a prosecution for health care fraud “invited” any error in calculating the amount of loss under U.S.S.G. § 2B1.1 by urging the trial court to adopt the amount of loss contained in the presentence report, id. at 1. It also held that the trial court did not clearly err in applying a sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(9)(C) where the defendant “recruited beneficiaries and sought out doctors so as to aid in hiding the illegality of his Medicare claims, and converted [a corporation] into a pharmacy through which he continued to defraud Medicare…” Id. The Court also held that the defendant’s sentence was within the Sentencing Guidelines range and therefore substantively reasonable, pursuant to U.S. v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and that “relevant uncharged or acquitted conduct may be taken into account in sentencing, as long as such conduct is proven by a preponderance of the evidence and the court clearly applied the Guidelines as advisory.” Id. (citing U.S. v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006)).

The Court affirmed the defendant’s above-Guidelines sentence for travel with intent to engage in a sexual act with a juvenile in U.S. v. Smith, No. 08-11665, 2009 WL 693342 (11th Cir., March 18, 2009), noting that the district court could upwardly depart in sentencing the defendant based upon violations of the defendant’s supervised release, pursuant to U.S.S.G. § 7B1.4, comment. (n.3), id. at *2.

            In U.S. v. Whitehead, No. 08-13201, 2009 WL 691184 (11th Cir., Mar. 18, 2009), the Court affirmed the denial of the motion for a sentencing reduction, brought pursuant to 18 U.S.C. § 3582(c)(2) of the defendant, who was convicted of various drug and crack cocaine offenses, holding that the Sentencing Commission’s Amendment 706 to U.S.S.G. § 2D1.1(c) in November 2007, which provided a two-level reduction in base offense levels for certain crack-cocaine offenses, did not affect the guideline ranges of defendants who were sentenced as career offenders under U.S.S.G. § 4B1.1, id. at *3 (citing U.S. v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008)). The Court also held that the defendant was ineligible for the reduction despite the fact that he had been granted a downward departure pursuant to U.S.S.G. § 4A1.3, observing that “[t]he critical fact… is that the district court used the offense level from the career offender guideline to calculate [the defendant’s] applicable guideline range,” rather than § 2D1.1. Id. at *4.

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Invocation of Right to Counsel in State Proceeding Inapplicable in Federal Proceeding

In United States v. Davis, No. 07-12015, 2008 WL 800125, *1 (11th Cir., Mar. 27, 2008), Benjamin Davis was stopped at a roadblock by Atlanta police officers, who found a handgun on the floor of Davis’ vehicle. Davis was charged under Georgia law with unlawful possession of a firearm and invoked his right to counsel at his arraignment. Id.

A Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) agent then sought to interview Davis, and Davis agreed to the interview. Id. During the interview, Davis told the agent that the firearm was his and that he was a convicted felon. Id. The agent gave Davis no warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and did not advise him of his right to counsel. Id.

Unsurprisingly, Davis was later indicted by a federal grand jury for possessing a firearm as a convicted felon and moved to suppress the statements he made to the agent. Id. The trial court denied the motion, and Davis entered a guilty plea and subsequently appealed, arguing that his interrogation by the agent violated his Sixth Amendment right to counsel, since he was charged with the same offense in state and federal court and had invoked his right to counsel in the state proceeding. Id. at *1-2. The Eleventh Circuit Court of Appeals affirmed the district court’s denial of Davis’ motion to suppress, holding that, under the “dual sovereignty doctrine,” “a defendant's invocation of his right to counsel in the state criminal proceedings does ‘not attach to the uncharged federal ... offenses at the time of the interview.’” Id. at *2 (quoting United States v. Burgest, --- F.3d ----, No. 06-11351, Slip Op. at 7 (11th Cir. Mar. 13, 2008)).