United States v. Abney

• Decision Date: 05 February 2016
• Docket Number: No. 14–3074.,14–3074.
• Citation: 812 F.3d 1079
• Parties: UNITED STATES of America, Appellee v. Sylvan D. ABNEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

812 F.3d 1079

UNITED STATES of America, Appellee

v.Sylvan D. ABNEY, Appellant.

No. 14–3074.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 10, 2015.

Decided Feb. 5, 2016.

Rachel Murphy argued the cause for appellant. With her on the briefs were Brent Gurney and Emily Stark.

Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Vincent H. Cohen Jr., Acting U.S. Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and David B. Goodhand, Assistant U.S. Attorneys.

Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge BROWN.

ROGERS, Circuit Judge:

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court identified the two-prong objective test for determining whether a defendant's constitutional right to the effective assistance of counsel has been violated. Today that question arises in the context of a sentencing for possession of 68 grams of crack cocaine that occurred five days after Congress passed the Fair Sentencing Act ("FSA"), when Presidential approval was imminent and virtually assured. Despite knowing that when the FSA was signed by the President, the mandatory minimum sentence for his client's offense would be cut in half, from 10 years to five years, Sylvan D. Abney's then-counsel failed to seek a continuance of sentencing.

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 minimums 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 minimums 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 minimums 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 "reasonabl[e], conscientious[ ], and impartial[ ]" judge, Strickland, 466 U.S. at 695, 104 S.Ct. 2052, thereby reducing Abney's mandatory minimum sentence by half.

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 Strickland 's prejudice prong is the subjective opinion of the sentencing judge about a continuance dispositive, for Strickland focuses on what a reasonable judge would do upon considering the relevant factors, which this court had identified before Abney's sentencing and which weigh in his favor. Our colleague's other objections lack merit. The court's analysis adheres to Strickland 's two-prong approach and does not collapse the two prongs into one. See Dis. Op. 1095–97. Nor does the court's analysis do violence to our republican form of government. See id. at 1101.

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)(1)(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 minimums 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), 124 Stat. at 2372 (amending 21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii) ). Congress's passage of this landmark sentencing reform was widely publicized, and it was well known that the President would promptly sign the legislation.¹ Pursuant to Article I, Section 7 of the United States Constitution, the President had only 10 days (excepting intervening Sundays) upon presentment to sign the bill into law. U.S. CONST . art. I, § 7. The President signed it promptly on August 3, 2010.

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.1 (July 28, 2010). In his sentencing memorandum, Abney's counsel wrote:

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 retroactivity, 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–1 crack-to-powder sentencing disparity was lowered to 18–to–1, 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...