Puckett v. United States
Bill Long 1/6/09
Docket No. 07-9712; Oral Arg. January 14, 2009
This case would not be a case unless the Government reneged on a deal it made with the defendant. The Government admits it reneged, it wants to get away with it, and the Fifth Circuit (TX) agreed with the Government. More specifically, however, this case is about what lawyers call the "standard of review" by an appellate court of a lower court's decision in this matter. Should it be a defendant-harsh "plain error" standard or the defendant-friendly "de novo" standard. The exposition below clarifies these issues.
Puckett isn't a nice guy. He was charged by indictment in the Northern District of TX with bank robbery, a robbery that took place 4/4/02. Since he was carrying a gun, he also was charged with a firearm enhancemen. These are both federal crimes. At the time Puckett of the crime was on post-conviction supervised release for three prior federal felony offenses. Just for the information of you readers--that isn't the way you should choose to leave your mark in the world..
He pled guilty to both counts on 9/3/03. As part of the guilty plea he executed a plea agreement and factual resume for the crimes. Everyone signed it. This plea was accepted by a federal judge. Paragraph 8 of this agreement states:
"The government has agreed that Puckett has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction in his offense level.”
It doesn't say exactly how much time that would save Puckett in prison. My sense is that he would be serving decades in prison under any scenario. In any case, we have an unqualified declaration of the Government--no conditions are attached here.
The next day the Government filed a motion that would decrease the offense level one more step. What had gotten into the Government, you might ask? Had someone been spiking their tea? This isn't the normal way that prosecutors act... In any case, the Government filed that motion with the statement:
"the Government agrees that the defendant has clearly demonstrated acceptance of responsibility for his offense.”
So, we now have a clear and unequivocal concession by the Government--a four step or level reduction in sentencing.
However, when the actual sentencing hearing came, the Government changed its tune. No doubt there was great debate, raised voices, etc. among the prosecutors. Indeed, it might be a good exercise to "imagine" the nature of the debate within the prosecutor's office once you read the next sentence or two. The Government's lawyer made a rambling statement at sentencing (see if you can follow the first part...), but the conclusion was clear.
"Your honor, to the acceptance of responsibility, that third level, which, of course, does not come into play unless the court finds that he should receive the downward - - the first two levels, that was made a long time ago. That was before the offense that was committed that Ms. [HARBGS/] included in her presentence report and we would object to him receiving any acceptance or responsibility points at this point.”
People are unclear in their speech either because they haven't thought about what they wanted to say before they speak, they are dumb or they are feeling a bit guilty about what they are really trying to say. I leave it to you to decide on that one. In any case, the Government basically withdrew what it had already agreed to. It wasn't the same as withdrawing an offer to buy a car for $5,000 before the seller has agreed. Here there was already a signed agreement--what we call in law a "binding contract."
Well, you see the writing on the wall. The judge allowed the Government to withdraw everything and the Fifth Circuit (TX) allowed it also. Thus, on the one hand we have an issue of the proper remedy for someone, even though he is a pretty lowly creature, when the Government reneges on a deal. Shouldn't he have the same rights as everyone not to be lied to by the Government? Thus, this is the bigger issue "hovering" behind this case.
But the legal issue that will be argued has to do with the "standard of review" of an appellate court. That is, should the Fifth Circuit have accepted the district court judge's findings of fact and conclusion UNLESS he was plainly in error? Or, should the Fifth Circuit have reconsidered the whole matter and made an independent judgment on whether the judge had made the right decision? The first standard, a "plain error" standard, suggests that the role of the reviewing court is simply to affirm the lower court unless the error made is so plain, so egregious, that it as it were comes out and bites you. Actually, there is a "legal standard" defining plain error--from a 1997 Suprem Court case. It is:
'“[B]efore an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affects substantial rights.” … If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “ “seriously affects the fairness, integrity, or public reputation of judicial proceedings," Johnson v. US, 520 US 461, 467 (1997).
The Fifth Circuit says that this was their task here--only to conduct a "plain error" review. It held that the violation against Puckett didn't rise to that level.
Of course, at the Supreme Court, Puckett's lawyer will argue that the more charitable (to defendant) "de novo" standard of review should apply. In a "de novo" standard, the reviewing court stands in the shoes of the trial court--if a breach occurred, then the court would order a remand to the trial court for re-sentencing in accordance with the original document or a withdrawal of the plea altogether.
I think that someone, like judges, ought to have the guts to stand up to the Government when it has plainly lied and say, "There are consequences for your lying. You have to eat your words. You have to live by them. You might want to spank the attorney who spoke for you. But it is your internal problem and not the defendant's problem." But do you think there is a chance in heaven that this will happen?