United States v. Lustyik, 833 F.3d 1263

Robert G. Lustyik, a former FBI special agent, pleaded guilty to eleven counts (obstruction, fraud-related charges) after being indicted for aiding Michael Taylor; he pleaded guilty without a plea agreement.
During the case the government produced massive discovery: >1,000,000 pages unclassified and ~6,961 classified pages made available to Lustyik though he lacked clearance; defendants identified specific classified items under CIPA §5(a).
The district court reviewed the classified material in camera, found most of it not relevant or inadmissible under Rules 401/403, and excluded it from trial use; Lustyik pleaded guilty shortly thereafter.
New counsel substituted before sentencing and requested security clearance to review classified materials for sentencing preparation; the magistrate and district court denied the request, concluding the documents were not relevant to sentencing.
At sentencing counsel argued §3553(a) factors without access to the classified materials, obtained a downward variance from a guidelines range of 151–188 months to a 120-month sentence.
On appeal Lustyik argued (1) Sixth Amendment violation by denying counsel access to classified materials at sentencing, (2) entitlement under CIPA to review materials, and (3) the sentence needed clarification as to whether it applied to each count.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of counsel access to classified materials at sentencing violated the Sixth Amendment	Lustyik: denial prevented meaningful adversarial testing at sentencing and effectively denied counsel	Government: court reviewed materials in camera, found them irrelevant; counsel still had substantial discovery and argued §3553(a) factors	Denied — no presumptive Sixth Amendment violation; court did not abuse discretion in finding classified material not relevant to sentencing
Whether CIPA entitles defendant or counsel to review classified materials for sentencing	Lustyik: CIPA procedure supports counsel’s right to review classified material for sentencing preparation	Government: CIPA is procedural, does not create a freestanding discovery right; court may employ in camera review and protective measures	Denied — CIPA does not confer an independent right to classified discovery and procedural protections were satisfied
Whether the 120-month sentence is legally clear and lawful	Lustyik: contends sentence should be clarified as it may exceed statutory maxima for some counts	Government: concedes potential sentencing ambiguity/error because some counts carry lower statutory maxima	Remedy: remand for limited purpose of clarifying the general sentence (possible illegality if 120 months intended per count)

Gardner v. Florida, 430 U.S. 349 (sentencing is a critical stage entitling defendant to effective assistance of counsel)
Cronic, 466 U.S. 648 (presumption of prejudice where counsel completely fails to function as advocate)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance analysis requires showing prejudice; performance judged on reasonableness)
United States v. Collins, 430 F.3d 1260 (10th Cir. 2005) (Cronic presumption applied where counsel effectively abstained from testing competency evidence)
United States v. DeChristopher, 695 F.3d 1082 (10th Cir. 2012) (standard of review when constitutional claim asserted regarding evidentiary rulings)
United States v. Apperson, 441 F.3d 1162 (10th Cir. 2006) (abuse-of-discretion review of district court restrictions on classified discovery)
United States v. MacKay, 715 F.3d 807 (10th Cir. 2013) (illegal sentence exists when incarceration exceeds statutory maximum; remand for clarification)