Lead Opinion
Opinion for the Court filed by Circuit Judge ROGERS.
Dissenting opinion filed by Circuit Judge BROWN.
In Strickland v. Washington,
At the time of Abney’s scheduled sentencing it was an open question whether the reductions in the FSA would apply to pre-FSA conduct where the defendant was sentenced after the FSA took effect. Yet, as cases in this and other circuits indicate, the defense Bar was seeking continuances of scheduled sentencings until the FSA became law. That is because it was at least reasonably probable — if not more likely still — that courts would interpret the FSA’s new mandatory mínimums to apply to defendants sentenced after its effective date. In 1984, the Sentencing Reform Act established that the applicable Sentencing Guidelines are those in effect at the time of sentencing, not those in effect at the time of the offense. The FSA did not change this scheme. Rather, it amended the Controlled Substances Act to reduce the disparity between the amounts of crack cocaine and powder cocaine that trigger mandatory minimum sentences. It also directed the United States Sentencing Commission to issue new Sentencing Guidelines consistent with the FSA as soon as practicable and in no event later than 90 days after the FSA’s enactment. Any competent criminal defense attorney familiar with federal sentencing principles would have understood that courts were reasonably likely to read the FSA’s lower mandatory mínimums to apply to defendants sentenced after its enactment. The contrary interpretation of the FSA would impute to Congress an unusual intent: A defendant sentenced for a crack-trafficking offense after the FSA became law would receive the benefit of a lower Sentencing Guidelines range based on the reduced crack-powder disparity, while at the same time that defendant would be subject to mandatory mínimums based on the broad crack-powder disparity the FSA was meant to narrow.
A continuance would have placed Abney in a position to benefit from the reduced mandatory minimum were the interpretation of the FSA favorable to him to prevail. Moreover, a continuance posed no risk to the public because Abney was incarcerated pending sentencing. We hold that under Strickland’s two-prong test counsel’s failure to seek a continuance of Abney’s sentencing was, in the absence of any informed strategic choice, objectively unreasonable, and it also was prejudicial because, but for counsel’s failure, there was a reasonable probability that a continuance would have been granted by a “reasonable], conscientious! ], and impartial! ]” judge, Strickland,
Our dissenting colleague misapprehends our application of Strickland’s performance prong and misapplies the prejudice prong. Under' Strickland’s objective standards, counsel was not required under the performance prong to anticipate how the Supreme Court would ultimately resolve the issue of retroactivity. Nor under
Accordingly, because Abney was denied his Sixth Amendment right to the effective assistance of counsel, we remand the case for resentencing under the FSA.
I.
On December 17, 2007, Abney pleaded guilty to one count of possession with intent to distribute more than 50 grams of cocaine base (commonly known as crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(iii). Under the plea agreement, if the government determined Abney provided it with “substantial assistance,” then the government would ask the district court to depart from “either the Sentencing Guidelines or any applicable mandatory minimum sentence established by statute.” Otherwise the mandatory minimum sentence for Abney’s offense under the Controlled Substances Act was 10 years’ imprisonment. Once the government determined Abney’s cooperation had proved unsuccessful, the district court scheduled a sentencing hearing for October 13, 2009. The government twice moved to continue sentencing between October 2009 and August 2, 2010, because of Abney’s arrest and incarceration in Maryland.
Five days before Abney’s scheduled sentencing hearing, the House of Representatives, on July 28, 2010, joined the Senate in passing the FSA, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010), reducing the mandatory minimum for Abney’s offense by half, from 10 to five years. The drug amounts triggering mandatory mínimums for crack-trafficking offenses in the Controlled Substances Act were increased from 5 grams to 28 grams for the five-year minimum, and from 50 grams to 280 grams for the 10-year minimum. See FSA § 2(a),
Abney’s counsel was aware that the FSA had passed both houses of Congress and believed that it “w[ould] soon be in place.” Def.’s Mem. in Aid of Sentencing at 2 n.l
As an indication of the unfairness in sentencing in cases like Mr. Abney’s, counsel would note that new penalties for cocaine base will soon be in place, as the House and Senate have approved legislation reducing the powder/crack disparity to 18 to one. Under those guidelines 28 grams of crack would trigger the 5 year mandatory; it would take 280 grams to trigger the 10 year mandatory.
Id. Counsel also contemplated that the FSA might be applied to benefit Abney. In the same memorandum, he wrote: “[W]e would note that absent some retro-activity, Mr. Abney will be much more harshly punished than those committing and convicted of the same crime in the near future. He also will be effectively deterred longer than others.” Id. at 2 (emphasis added). Counsel failed to mention — and, it seems, failed to consider — a core feature of the federal sentencing scheme under the Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 212(a)(2), 98 Stat. 1837, 1989-90: that the applicable Sentencing Guidelines are those in effect at the time of sentencing, not those in effect when the offense was committed. 18 U.S.C. § 3553(a)(4)(A)(ii). As a consequence, counsel apparently overlooked an interpretation of the FSA courts were reasonably likely to adopt and thought, erroneously, that retroactivity would require “subsequent legislation,” Sentencing Tr. at 6. So, counsel did not seek a continuance of Abney’s sentencing date for any duration.
On August 2, 2010, the district court sentenced Abney to the 10-year mandatory minimum term of imprisonment. The court, however, lamented that outcome. At the sentencing hearing, it observed that, “[i]f the Court had some discretion, I probably would give you a sentence [of] ... somewhere less than 120 months. I mean I wouldn’t give you 60, but it would be somewhere in between....” Id. at 7. The prosecutor acknowledged that the government “[wa]s aware of the new legislation that recently passed that certainly defense may raise if he were at a different time [, which] might change [Abney’s] fate; but as of now that is not retroactive.... ” Id. at 5 (emphasis added). Abney’s counsel offered no response beyond suggesting that perhaps Abney’s sentence “will be revisited with retroactivity down the road.” Id. at 6. The district court noted, however, that “Congress, for whatever reason ... has also decided that retroactivity is not out the door.” Id. at 7.
The next day — August 3, 2010 — the President signed the FSA into law. As a result, the 100-to-l crack-to-powder sentencing disparity was lowered to 18-to-l, and the mandatory minimum sentence for possession with intent to distribute 68 grams of crack cocaine — Abney’s offense— was reduced from 10 years to five years. The Sentencing Commission was required to promulgate new Sentencing Guidelines “as soon as practicable, and in any event not later than 90 days after the date of enactment” of the FSA. FSA § 8,
Once the Sentencing Commission made Amendment 750 retroactive, Abney, through new counsel, filed an Unopposed Motion to Reduce Sentence under 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255. Notably, the motion stated that the government did not object to a reduction because “although it was well know[n] that the FSA was to become imminently effective, Mr. Abney’s counsel should have asked, but did not, to continue Mr. Abney’s sentencing in order to obtain the benefits of the amended statute.” Unopposed Mot. to Reduce Sentence at 2-3 (Oct. 3, 2012) (emphasis added). At the motion hearing, the prosecutor explained, presciently, that the government, after consultation with the Criminal and Appellate Divisions of the United States Attorney’s Office for the District of Columbia, did not oppose the motion because otherwise “the defense could come back with an argument that counsel was ineffective for failing to move to delay the sentencing at least one day until the Fair Sentencing Act was in effect” and there was “significant litigation risk on that claim.” Mot. Hr’g Tr. at 4, 6 (Apr. 9, 2013) .(emphasis added). The prosecutor further advised that in the government’s view “there is the question of whether the [district] [c]ourt ... would have abused its discretion in not continuing the sentencing date.” Id. at 6. The prosecutor noted that “there had been fairly widespread attention within the defense Bar ... to the fact that the law was going to change....” Id. at 4. Abney’s new counsel — a federal public defender — agreed, recounting being unable to “find any other case like this because frankly most people were continuing the sentences until after the date [the FSA became effective].” Id. at 14.
The district court denied Abney’s unopposed motion for sentence reduction, stating this court’s precedent “made it clear that the FSA’s lower mandatory minimum sentences do not apply retroactively to offenders who were sentenced before the Act became effective on August 3, 2010.” Mem. Order at 3 (Feb. 7, 2014) (citing United States v. Bigesby,
Abney’s present counsel filed an Unopposed Motion for Reconsideration, pursuant to Federal Rule of Civil Procedure 59(e), on his ineffective assistance of counsel claim under 28 U.S.C. § 2255. Counsel argued that “[t]here is no conceivable possible strategy that could cause an attorney to neglect to ask for a continuance when a law reducing his client’s sentence by half is immediately forthcoming.” Unopposed Mot. for Recons, at 8 (Feb. 24, 2014); see also id. at 9-10. The district court ruled Abney had not satisfied either of Strickland ’s prongs: On performance, counsel’s failure to seek a continuance was not objectively unreasonable because “it was far from apparent on the day of [Abney’s] sentencing ... that the FSA, once enacted, could apply retroactively to offenders, like Abney, whose conduct occurred before the FSA’s effective date [for] the FSA legislation itself contained no retroactivity provision.” Mem. Order at 2 (Aug. 29, 2014) (emphasis in original). On prejudice, “it is completely speculative — not ‘reasonably probable’ — that this Court would have
Abney appeals the denial of his Rule 59(e) motion for reconsideration, and this court granted a certificate of appealability on the issue of whether sentencing counsel’s failure to move for a continuance of Abney’s sentencing constituted ineffective assistance under the Sixth Amendment to the U.S. Constitution. Order, United States v. Abney, No. 143074 (D.C.Cir. Jan. 13, 2015).
II.
Under Strickland v. Washington,
[fjirst, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. at 687,
A.
Abney appeals the denial of his motion for reconsideration. Although this court may “normally review district court denials of Rule 59(e) motions only for abuse of discretion,” Dyson v. District of Columbia,
When the issue of ineffective assistance of counsel has come before this court in other procedural postures, the court has purported to remain agnostic on whether the standard of review of the denial of a Sixth Amendment claim of ineffective assistance of counsel is de novo or for abuse of discretion. See United States v. Toms,
The court is on firm ground in applying a de novo, standard. The Supreme Court’s analysis in Strickland and its subsequent ineffective assistance decisions evinces a standard of review consistent with de novo review. In these cases, the Supreme Court examines the record independently, with no apparent deference to the district or state court’s ineffective assistance analysis. See, e.g., Hinton v. Alabama, — U.S. -,
B.
To establish deficient performance by counsel under Strickland’s, first prong, a “defendant must overcome the [strong] presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland,
These proffered strategic rationales are implausible. The plea agreement on its face is not conditioned on Abney’s receiving a 10-year prison sentence: the agreement repeatedly disavows any certainty as to sentencing, and it does not grant the government the authority unilaterally to withdraw from the plea agreement should the sentence imposed be less than ten years. At sentencing the district court was already aware of the Maryland state charge, which Abney’s counsel noted in his sentencing memorandum had been dismissed. Further, the government never indicated to the district court that it would seek an upward variance. And the district court’s remarks prior to imposing sentence expressed a preference, in the absence of the 10-year mandatory minimum, for a Guidelines-range sentence or a downward departure. On this record, we conclude that there is no conceivable strategy that would justify the failure of Abney’s counsel to seek a continuance of sentencing. Rather, it appears that counsel’s failure stemmed from his unfamiliarity with the existence of more than one reasonably likely interpretation of the FSA. Cf. Varner,
Under the first prong of Strickland, counsel’s performance is “deficient” when counsel’s representation is not objectively reasonable, see Rodriguez,
On appeal, the government, like our dissenting colleague, has skewed the performance issue in arguing that Dorsey’s holding was unforeseeable. See Dis. Op. 1095, 1098-99; Appellee’s Br. 15-20. The retroactive effect of the FSA, the Supreme Court observed, was ambiguous because “relevant language in different statutes argue[d] in opposite directions” and the courts of appeals had reached “different conclusions” on the import of those statutes. Dorsey,
Where sentencing benefits are available under existing law, this court has concluded that counsel is ineffective when he fails to advocate on his client’s behalf at sentencing. See Rodriguez,
In view of counsel’s “overarching duty to advocate the defendant’s cause,” Strickland,
The other available interpretation was that the FSA does fairly imply that Congress wanted its mandatory mínimums to apply to defendants sentenced after its enactment. The FSA reduced the mandatory minimum sentencing disparity from 100-to-1 to 18-to-1 for crack and powder offenses, FSA § 2(a),
Counsel was not required to predict which .of these interpretations would ultimately carry the day. He was merely required to consider the FSA carefully enough to recognize there was more than one available interpretation courts were reasonably likely to adopt — one of which would benefit his client — and to seek a continuance so that his client would benefit if the favorable interpretation prevailed. “In these circumstances, reasonably effective counsel would have raised the issue, if for no other reason than to preserve” the possibility that Abney could benefit from the FSA’s lower mandatory minimum. See United States v. Marshall,
The government’s new response on appeal misses the mark. It maintains that Abney’s “counsel cannot be faulted for failing to anticipate, and act upon, Dorsey’s complex and novel legal ruling.” Appellee’s Br. 19; see also Dis. Op. 1095, 1098-99, 1101-02. Such clairvoyance is not the test under Strickland. See Maryland v. Kulbicki, — U.S. -,
Of course, “Abney’s counsel could not have known that the President would sign the FSA the [day after Abney’s scheduled sentencing]. But this is a quibble, for the record shows that ... Abney’s counsel believed that as of July 28 [five days before Abney’s scheduled sentencing] the law would ‘soon be in place,’ ” Appellant’s Br. 22 (citing Def.’s Mem. in Aid of Sentencing at 2 n.l), and counsel “could have requested a continuance for no longer than the mere ten days the President had to sign the bill into law,” id. As Abney rightly notes, “[w]hile retroactivity tied to the date of sentencing still presented the question of whether August 3, 2010 (the date of the FSA’s enactment) or November 1, 2010 (the latest date the FSA-mandated amended guidelines could have come into effect) ... was the significant date, that uncertainty does not validate counsel’s failure.” Reply Br. 5 n.2 (internal citation omitted). Objectively reasonable counsel would have sought a continuance to ensure that Abney was sentenced after the FSA became law. There was no strategic reason not to, and the failure to do so was unjustifiable because “it cost the defense nothing and the possible benefit ... was undoubtedly significant,” United States v. Hylton,
Our dissenting colleague’s primary disagreement with this performance prong analysis is that it demands too much of defense counsel. Dis. Op. 1096-97, 1098-99. Not so. As this court has long acknowledged (see, e.g., Soto, Gavina, supra), the Sixth Amendment requires defense counsel to keep apprised of changes to sentencing law that may affect his client and to invoke them appropriately. Nothing in the court’s analysis today would obligate counsel blindly “to pursue any action that might reasonably benefit the client.” Dis. Op. 1096. Instead, Abney’s case concerns the imminent enactment of watershed sentencing reform that cut in half the mandatory minimum sentence he was facing, by five years. Counsel was not only obligated to be aware of this fact, as Abney’s counsel was, but in the absence of any strategic considerations, counsel was also obligated to pursue sentencing benefits arising from available, reasonably probable interpretations of new sentencing laws. This standard does not oblige counsel to take into account any and every possible interpretation. Consistent with professional standards and constitutional requirements, it reflects what defense counsel should be doing already. See, e.g., Thompson,
Congress’s actual passage of the FSA and the imminence of the President’s signature—as well as the failure of Abney’s counsel to seek a continuance—distinguish our decisions in Thompson,
C.
Under Strickland’s second, but-for prejudice prong,
In United States v. Gantt,
the length of the requested delay; whether other continuances have been requested and granted; the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court; whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; whether the defendant has other competent counsel prepared to try the case, including the consideration of whether the other counsel was retained as lead or associate counsel; [and] whether denying the continuance will result in identifiable prejudice to defendant’s case, and if so, whether this prejudice is of a material or substantial nature.
Id. at 256 (alteration in original) (quoting United States v. Burton,
By the time Abney was scheduled to be sentenced, the FSA had been passed by both houses of Congress and was mere days away from the President’s signature. The FSA’s text made it reasonably likely,
Our dissenting colleague emphasizes delay in Abney’s sentencing, Dis. Op. 1099-1100, but ignores both the balance of the Gantt factors and that Abney was not at liberty pending sentencing. Nor is any precedent offered for the novel proposition, contrary to the Supreme Court’s instruction in Strickland, that an appeals court should accept the subjective “assessment,” id. at 1101, of a particular district court judge. The dissent’s approach would replace Strickland’s objective prejudice analysis with a test that falls somewhere between a subjective inquiry and a deference doctrine. Additionally, as reported cases reversing district courts make obvious, the court’s analysis requiring a remand for resentencing is neither “discrediting” nor “abusing” the district court. Id.
Finally, it was reasonably probable that if the FSA had applied, Abney would have received a lower sentence. Prior to the FSA, a 10-year mandatory minimum constrained the district court’s sentencing discretion. The FSA halved the minimum, reducing the mandatory minimum to five years. Given Congress’s redetermination of the appropriate minimum and its emphasis in the FSA on promptly lowering sentences for crack cocaine offenses under revised Guidelines, there is no reason to conclude that an objective, “reasonable], conscientious[], and impartial]” district judge, Strickland,
Accordingly, because Abney has shown that his counsel’s performance at sentencing was objectively unreasonable and that he suffered prejudice as a result, we reverse the denial of his motion for reconsideration and remand the case to the district court for resentencing under the FSA.
Notes
. See, e.g., Jim Abrams, Congress Passes Bill to Reduce Disparity in Crack, Powder Cocaine Sentencing, Wash. Post, July 29, 2010, at A09; Erik Eckholm, Congress Moves to Narrow Cocaine Sentencing Disparities, N.Y. Times, July 29, 2010, at A16; Press Release, The White House Office of National Drug Control Policy, Congress Passes Monumental Fair Sentencing Act and Restores Fairness to Cocaine Sentencing (July 28, 2010) (expressing Administration support for the FSA bill after it passed both houses of Congress); .Press Release, Department of Justice, Statement of the Attorney General on Passage of the Fair Sentencing Act (July 28, 2010) (congratulating House of Representatives on passing the FSA); Press Release, Department of Justice, Statement of the Attorney General,: on Senate Judiciary Committee's Approval of the Fair Sentencing Act (Mar. 11, 2010) (applauding Senate Judiciary Cbmmittee’s approval of bill that would become the FSA).
Dissenting Opinion
dissenting:
It is hard to say whether a medium or a fortune-teller would be best suited for this case. The Court’s opinion seems to be one part Back to the Future, requiring trial counsel to possess a DeLorean, a flux capacitor and the inventiveness of the fictional Doc Brown in order to render competent assistance to a client. But it is another part Zombie Apocalypse, intent on disinterring the grisly remains of the long defunct approach of purposive judicial interpretation. Because neither approach is consistent with precedent and our judicial responsibilities, I respectfully dissent.
It seems silly to recite again the familiar ineffective-assistance standard of Strickland v. Washington,
Today, the Court replaces this familiar two-part test with a one-part test of its own making. Under this new version of Strickland, an attorney’s conduct is ineffective if the attorney failed to pursue an action that “had a reasonable likelihood of success.” Maj. Op. at 1088. The Court is open about this elision, calling this “the rare case where both Strickland prongs turn on the same question, whether there is a reasonable probability that the outcome of [Abney’s sentencing] would have been different had this issue been raised.” Maj. Op. at 1088.
Examination reveals this novel conception of the Strickland standard has a limited lineage and, in our circuit, a common progenitor. Only three circuit court opinions have ever stated that the two prongs of Strickland operate, in rare instances, as one. See Etherton v. Rivard,
This Court picked up the idea sixteen years later, in an opinion authored by the same judge writing for the majority today. Payne,
The single-prong Strickland test has a shallow provenance for good reason. It is an elision of an important constitutional test that results in substantively different outcomes. The Court imports the reasonable probability standard of Strickland’s second part into its first part. Under this novel formulation, a defendant who satisfies the second, prejudice prong of Strickland will always satisfy the first, objective-standard prong of Strickland, because whether an attorney’s conduct fell below a professional standard depends on whether the attorney took every step that had some reasonable possibility of success for the client. By collapsing Strickland into this single step, the Court transforms the objective standard of Strickland into a retroactive assessment of the “rightness” of a defendant’s outcome. Defendants who could have had better outcomes if their counsel had made different arguments will, by inference, have received ineffective assistance. Under the Court’s approach, a lawyer is obligated to pursue any action that might' reasonably benefit the client. Failing to do so constitutes unreasonable attorney conduct, and hence, it amounts to constitutionally ineffective assistance.
This is not the approach endorsed by Strickland. Strickland’s second prong is about whether a defendant was prejudiced by his counsel’s ineffective assistance. But a court may reach the second prong only if counsel’s performance is adjudged ineffective under an objective standard. That’s because the second prong of the Strickland test is remedial in nature — it’s not about whether there was a constitutional violation but about what we do after we know there was a constitutional violation. If a defendant’s outcome would have been the same, we say the constitutional violation was harmless. If there is a “reasonable probability” the outcome would have been different, then we take some type of action to remedy the constitutional problem.
Today the Court says the existence of a “reasonable probability” of a different outcome actually answers the first prong of Strickland: whether there was a constitutional violation in the first place. Never mind that prong one of Strickland has its own standards for determining whether a constitutional violation occurs — standards that focus entirely on the realm of reasonable legal strategies, not the range of preferable legal outcomes. Strickland has always been about acknowledging the strategic aspect of lawyering. It is a commonplace observation that a lawyer simply cannot predict what will and will not work. Defendants have no right to counsel with flawless judgment; rather, the purpose of the right to effective counsel “is simply to ensure that criminal defendants receive a fair trial.” Id. at 689,
The worst part of the Court’s new, amalgamated Strickland standard is that it doesn’t work. Trial counsel often face multiple strategic options, each presenting a reasonable possibility of benefitting the client’s interests, but also presenting a reasonable possibility of harming the client’s interests. For example, in most circumstances, when defense counsel considers whether to present a witness, there is a reasonable possibility the witness will benefit the client’s case, but also some possibility the witness will be a dud or even diminish the client in the jury’s eyes. If we second-guessed all of counsel’s decisions on the basis of whether they might have had a reasonable possibility of chang
So applying the Strickland standard in the right order, we should ask whether Abney’s counsel rendered ineffective assistance in the first place — whether it was objectively unreasonable for counsel not to seek a continuance of Abney’s sentencing on the basis of the pending Fair Sentencing Act.
To start, we know Abney’s 'counsel was aware of the Fair Sentencing Act, which was then awaiting the President’s signing decision. Abney’s counsel noted at sentencing that “new penalties will soon be in place” that would leave Abney “much more harshly punished than those committing and convicted of the same crime in the near future.” J.A. 18. But Abney’s counsel did not think Abney could benefit from the new law’s more lenient penalties “absent subsequent legislation making [the Fair Sentencing Act] retroactive.” J.A. at 25. In other words, Abney’s counsel was aware of the developing legal changes, and he considered the law’s applicability to Abney. Cf. Torres v. United States,
Congress enacted the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, without any explicit provision addressing whether and how pre-Act offenders would be treated under the law. The language of the Act was forward-looking. Even the Court acknowledges today that “[t]he retroactive effect of the [Fair Sentencing Act] was ambiguous” as enacted. Maj. Op. at 1089.
After President Obama signed the Act into law, courts confronted the question of the Act’s possible retroactivity. This Court agreed with every other circuit court to address the issue: “there [was] simply ‘no evidence that Congress intended the [Fair Sentencing Act] to apply to defendants who had been sentenced prior to the August 3, 2010 date of the Act’s enactment.” United States v. Bigesby,
Three circuits concluded defendants who committed their crimes before the Act took effect could not take advantage of its lower sentences, even if they were sentenced after the Act was implemented. United States v. Fisher,
Three other circuits concluded that pre-Act offenders could take advantage of the Act’s lower mandatory mínimums. These circuits adopted a “partial retroac-tivity” approach, in which the Act applied retroactively to those who committed their offenses before its enactment but were sentenced afterwards. These “partial retroactivity” circuits, however, could not agree on which date would make the critical difference for sentencing purposes. The First Circuit held the Act’s new mandatory mínimums applied only to defendants sentenced after the new sentencing guidelines went into effect on November, 1, 2010. United States v. Douglas,
“In light of [this] disagreement” among the circuit courts of appeals, the Supreme Court took up the Act’s retroactivity question, and in a 5-4 decision, held “the Fair Sentencing Act’s new, lower mandatory mínimums apply to the post-Act sentencing of pre-Act offenders.” Dorsey v. United States, — U.S. -,
Given that background, it is impossible to say Abney’s counsel performed incompetently by not asking for a continuance of Abney’s sentencing. At the time Abney’s counsel decided whether to seek a continuance, no court had yet enunciated the theory of partial-retroactivity. Even when that theory emerged, federal courts divided over whether it was a proper interpretation of the Act. Moreover, the Supreme Court was itself divided over the theory, by a 5-4 vote. And even for those justices in the majority, the partial retroactivity interpretation was, at best, a means of sorting out a tangle of statutory language pulling in different directions. In contrast to what the Court says, then, counsel here neither ignored established guidelines, United States v. Soto,
Here, counsel did not face “two reasonably likely but uncertain readings of the [Fair Sentencing Act],” as the Court insists. Maj. Op. at 1089. Counsel had every reason to believe retroactivity would continue to be the all-or-nothing concept-it had always been — retroactive or prospective, but nothing in between. See Holcomb,
The Court asserts the outcome of Dorsey was “reasonably likely,” and therefore counsel should have taken steps to ensure that his client’s interests were protected if this “reasonably likely” interpretation ultimately carried the day. Yet the analysis offers no support for its view that the Dorsey result was “reasonably likely” aside from its own say-so. The best the court can muster is the fact that some other defense counsel were seeking continuances at this time. This assertion, however, only demonstrates that some attorneys thought the date of sentencing might be of subsequent importance, not that all competent attorneys would think so. A few motions hardly serve as the kind of professional norm contemplated in Strickland. See
Not only could Abney’s counsel not have reasonably predicted the Court’s partial-retroactivity approach in Dorsey, he was also laboring under the limitations of his client’s case — which gave him sound, strategic reasons for not seeking a continuance. Under ordinary circumstances, a short continuance might be a small ask, but Abney’s was no ordinary case: by the time of his scheduled sentencing hearing, he had already been avoiding sentencing for nearly three years. After initially facing a ten-year mandatory minimum sentence, Abney had entered a plea agreement with the government in which he agreed to provide investigative assistance in exchange for his release with supervision. See Appellee Br. 3-4. Thus, he could, through his own initiative, dramatically reduce his sentence. But Abney could not bring himself to fulfill the conditions of his release: he tested positive for cocaine and marijuana; he “waterloaded” his urine samples in an effort to thwart his mandatory drug testing; he failed to appear for drug tests; and, ultimately, he lost contact altogether with supervising law enforcement. Above all of this, the government never received any cooperation from Abney. Realizing that they had been duped, the government obtained a sentencing date of October 13, 2009. Ab-ney again managed to avoid sentencing, this time because Maryland authorities arrested and detained him on charges of attempted first-degree murder. J.A. 11. Abney’s subsequent incarceration -in Maryland forced the district court to postpone his sentencing twice. J.A. 14.
The problems with the Court’s approach do not stop there. Even if Abney’s counsel had suspected partial retroactivity would become the rule, on what date would retroactivity take effect? Would counsel have needed a continuance of ten days, enough time to allow the law to be signed? Or a few months, to allow time for new sentencing guidelines to be written and go into effect? See United States v. Thompson,
Even were we to accept that Abney’s counsel performed ineffectively, Abney would still need to satisfy Strickland’s second prong by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
Continuances fall within the discretion of the trial judge, United States v. Burton,
But abusing the district court is still not enough. Rather than defer to the sentencing judge’s reasonable assessment of the likelihood of his granting relief, the Court takes yet another unpredictable step, relying on de novo review. Whether de novo review applies in these circumstances is a question this Circuit has left unanswered for nearly thirty years. See, e.g., United States v. Askew,
At the heart of the Court’s misreading of Strickland is a misapprehension about the realities of our republican form of government. The Court seems baffled that Congress would “insist on the near-immediate reduction of the 100-to-l disparity in the Sentencing Guidelines for defendants sentenced after the [Fair Sentencing Act’s] enactment but leave in place for those same defendants the old, unfair mandatory mínimums.” Maj. Op. at 1091. Congress did not address retroactivity in the Fair Sentencing Act, in all likelihood, because it could not do so; had the Act taken up that issue, it may well have never garnered the votes necessary for passage. In our form of government, legislative compromise often produces imperfect outcomes. Here, those imperfections are most evident in the line-drawing problems caused by the new mínimums. But this should not surprise the Court. Dorsey, in fact, recognizes that there are line-drawing problems with the application of the new mínimums: pre-Act offenders who were also sentenced pre-Act remain in prison, serving lengthy sentences premised on a now-rejected cocaine-to-powder ratio. See-
Instead, the Court attempts to smooth out some of the disparity on its own, by moving Abney from the old, discredited sentencing regime into the new one. And it’s not easy. First, the Court revises the Strickland test, from two prongs into one. Second, the Court decides to apply de novo review, forcing an answer to a question unsettled in this jurisdiction for more than thirty years. I do not doubt that in its determination to rescue Abney, the Court acts with good intentions. In Dorsey, the high court acted with similar motives when it decided to pick and choose among opposing provisions to make the Fair Sentencing Act’s more lenient provisions available to a larger number of defendants. That result might be what Congress should have adopted or would have enacted had decades of study produced sufficient votes. Instead, the Supreme Court fashioned an ad hoc measure to implement its widely-favored policy and in doing so offered neither rule nor guidance for future cases. If separation of powers is to have any meaning, the result in Dorsey cannot be deemed ordinary — certainly not so ordinary that counsel should be trained to expect it.
Here, trial counsel and the district court discussed, openly and on the record, that in order to benefit from the Fair Sentencing Act, Abney would need a legislative fix. Abney would need Congress to act in order to give him the benefit of the law. Today, the Court turns that healthy, con