Friday, February 15, 2013

IAC found in federal drug conspiracy case that carried mandatory life sentence

Branden Bell won in United States v. Gilmore, Case No. 12-2263-JWL (Dist. Kan. Feb. 4, 2013), a motion to vacate sentence pursuant to 28 U.S.C. § 2255.  In the underlying criminal case (Dist. Kan. Case No. 07-20164-05-JWL), Mr. Gilmore was convicted by a federal jury of conspiracy to distribute and to possess with intent to distribute more than 50 grams of methamphetamine.  He was sentenced to the mandatory minimum sentence of life imprisonment, which was imposed based on his two prior convictions for felony drug offenses.  See 21 U.S.C. § 841(b)(1)(A)(vii).  In granting the 2255 motion, the court found that trial counsel's performance was deficient and that it prejudiced the outcome of the process.  The memorandum opinion is available here.

Specifically, the court found that Gilmore's attorneys were ineffective because they should have advised him that he was facing a mandatory life sentence based on the two prior felony drug offenses and based on his trial attorney's apparently misunderstanding of federal drug conspiracy laws:
The court is persuaded that Mr. Gilmore received constitutionally deficient representation from initial counsel by counsel’s failure to advise Mr. Gilmore that his convictions could trigger a “double” bill of information under § 851 from the government which would result in a mandatory minimum life sentence.  [Citations omitted.]  Of course, the deficient performance of Mr. Gilmore’s initial counsel occurred early enough in the case that the errors could have been corrected by trial counsel in sufficient time to preclude any prejudice to Mr. Gilmore. Unfortunately, trial counsel not only failed to correct the errors of initial counsel but compounded those errors through her own deficient performance.
It is undisputed that trial counsel, by July 2008, knew that Mr. Gilmore had two prior felony drug convictions. Nonetheless, her July 21, 2008 letter to Mr. Gilmore clearly indicates that trial counsel did not understand the implication of those two prior drug convictions. She cautioned Mr. Gilmore that he was facing “a substantial amount” of time (she calculated a guidelines range of 360 months to life) and her handwritten notes indicate to the court that trial counsel believed that Mr. Gilmore was eligible for a guidelines sentence. Certainly, nothing in the letter or the attachments notifies Mr. Gilmore of any possibility of a mandatory minimum life sentence.
 The court is also convinced that, during this same time frame, trial counsel’s understanding of federal drug conspiracy laws and her assessment of the evidence against Mr. Gilmore were entirely inaccurate. The court is persuaded that trial counsel led Mr. Gilmore to believe that his chances of securing an acquittal were higher than the law would support under the facts of the case and that Mr. Gilmore’s protestations of his “innocence” were informed by trial counsel’s advice. Specifically, trial counsel advised Mr. Gilmore that “sharing” drugs did not mean “distributing” drugs. Mr. Gilmore testified that trial counsel gave him that advice and that testimony is corroborated by trial counsel’s own arguments during the instruction conference at trial. While that legal question is apparently an open one in the Tenth Circuit, [citation omitted], trial counsel’s advice to Mr. Gilmore that the two concepts were, in fact, different is not the law of the Circuit. Nonetheless, Mr. Gilmore, presumably with the go-ahead from trial counsel, testified at length at trial about purchasing methamphetamine from a known drug dealer and sharing those drugs with his co-defendants, his friends and his girlfriend on numerous occasions.
Mr. Gilmore also testified that he drove one or more of his co-defendants to Kansas City, Kansas for the purpose of purchasing methamphetamine, that he knew his co-defendants were drug dealers at the time, and that he assumed his co-defendants were bringing methamphetamine back to St. Joseph, Missouri. Mr. Gilmore’s decision to testify without hesitation about such matters indicates a belief that his level of involvement with his co-defendants did not constitute a violation of federal drug conspiracy laws—a belief that the court is convinced was informed by trial counsel. Trial counsel reviewed the proffer statements on numerous occasions and did not see anything “particularly damning” about Mr. Gilmore. She asked the prosecutor if she was “missing something.” Trial counsel admitted at the evidentiary hearing that she had “some concern about whether or not they had evidence against him.”
After carefully considering the evidence presented at the hearing, the court concludes that Mr. Gilmore has established the requisite prejudice in two respects. First, the court is persuaded that Mr. Gilmore, with the advice and guidance of competent counsel, would likely have obtained a plea agreement in the summer of 2008—prior to the filing of the § 851 notice—that would have contemplated either a 20-year mandatory minimum sentence or, at worst, a mandatory minimum life sentence, but in either case with the opportunity for a reduced sentence under § 3553(e) for substantial assistance. Second, the court is persuaded that Mr. Gilmore, again with the advice and guidance of competent counsel, would likely have obtained a plea agreement just prior to trial that, while incorporating the mandatory minimum life sentence triggered by the § 851 notice, would have provided Mr. Gilmore an opportunity to nonetheless get out from under that statutory minimum through substantial assistance.
In sum, trial counsel’s failure to understand and communicate to Mr. Gilmore the sentencing implications of his two prior felony drug convictions, coupled with trial counsel’s misunderstanding of federal drug conspiracy laws, deprived Mr. Gilmore of the opportunity to make a knowing and intelligent decision about whether to accept the government’s standing plea offer. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (criminal defendant is entitled to competent advice of counsel in plea negotiations). The court is similarly persuaded that Mr. Gilmore’s continued protestations of innocence and his decision to proceed to trial were undoubtedly informed by the affirmative misadvice he received from trial counsel. For the foregoing reasons, the court concludes that Mr. Gilmore’s counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. 
Regarding the prejudice of counsel's deficient performance, the court made the following factual findings:
[T]he court finds it reasonably probable that Mr. Gilmore and the government would have entered a cooperation agreement in April 2009 if Mr. Gilmore had been represented by constitutionally effective counsel at that time. 
* * *
The mandatory minimum, of course, would only be inapplicable if Mr. Gilmore cooperated and the government filed a § 3553(e) or if the government withdrew the § 851 notice. Because the court is not persuaded that the government would have agreed to withdraw that notice, the prosecutor’s reference to acceptance of responsibility must indicate that she anticipated Mr. Gilmore’s cooperation and the subsequent filing of a § 3553(e) motion.  The court is also persuaded that Mr. Gilmore would have accepted a cooperation agreement . . . .  And while it is impossible to say at this juncture what the nature and scope of Mr. Gilmore’s cooperation might have been (or how useful that information might have been to the government), the court is nonetheless persuaded that a reasonable probability exists that Mr. Gilmore’s ultimate sentence would have been less severe than a life sentence.
Thus, the court concluded that Gilmore demonstrated both that his counsel’s performance was constitutionally deficient and that the performance prejudiced Mr. Gilmore.  Regarding the remedy, the court ordered the parties to meet and confer about an appropriate remedy to see whether the parties can resolve the issue, subject to the court’s approval.  It seems likely that the parties will agree to give Mr. Gilmore the benefit of one of two plea agreements that were originally offered.

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