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Appeal Case Analysis

Defense attorneys need to be aware of this case, lest what seems like a reasonable solution — alternative orders depending on the result of a pending appellate decision in another case — become a trap for the unwary.

Many Wisconsin defendants received alternative sentences during the period between the Seventh Circuit’s decision in Booker, and the Supreme Court’s. For any defendant who failed to timely appeal, thinking that he could merely revisit the issue in the district court at any time, it is obviously too late to remedy the situation.

However, as the court noted in dicta, similar cases could easily arise, when other issues are pending before the Supreme Court.

The court posited a hypothetical in which a district court imposes a prison sentence of 37 months, unless the Supreme Court holds the exclusionary rule applicable to violations of the Fourth Amendment’s knock-and-announce principle, in which case, the district court says it would reduce the sentence to 24 months.

The court noted that current Seventh Circuit precedent holds the exclusionary rule inapplicable to the knock-and-announce rule, but that the Supreme Court is currently considering that issue, in Hudson v. Michigan, cert. granted, 125 S.Ct. 2964 (2005).

A failure by the defendant to timely appeal such a sentence would be fatal. The court warned, “A defendant may appeal and ask us to hold for Hudson, but a district judge may not grant himself an open-ended period to revise a sentence in light of new authority.”

The court does leave open the possibility that a defendant could fail to appeal, and still bring a motion to modify sentence, “with the consent (or after the oversight) of an appellee.” Smith failed to make that argument, however, so the court did not address it.

What little dicta the court does offer on that issue, however, suggests that, even if the government consented to open-ended review by the district court, jurisdiction would still be lacking.

The court wrote, “The Supreme Court has called the time limit ‘mandatory and jurisdictional’ dozens of times, however, and we are reluctant to upset that understanding.”

In short, the only reasonable course of action is to appeal when alternative rulings are imposed, regardless of what assurances may come from the district court and/or the government that it is unnecessary to appeal to preserve the defendant’s rights.

However, when trial counsel fails to appeal in a case such as this one, or such as the court’s hypothetical case pending the decision in Hudson, a defendant may not be entirely lacking in hope.

In U.S. v. Hirsch, 207 F.3d 928 (7th Cir. 2000), no timely appeal was filed. According to the defendant’s trial counsel, the district court asked him whether the clerk should file an appeal on his behalf, and counsel answered yes. But the clerk did not file an appeal, and counsel did not realize it until after the ten day deadline. Hirsch, at 929.

Despite acknowledging that, “if true,” the facts are, “shocking,” the court dismissed the appeal, and refused to apply the “unique circumstances doctrine,” because there was no express assurance given to counsel that some necessary step had been taken correctly. Id., at 930.

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However, the court continued, “Hirsch is not out of options. He may now file a motion under 28 U.S.C. 2255, contending that [his attorney’s] failure to ensure that the clerk followed through deprived Hirsch of the assistance of counsel guaranteed by the Sixth Amendment. If the district court finds that [counsel] was asleep on the job, then the court must vacate the judgment and reimpose the sentence to permit an appeal.” Id., at 931.

In the case at bar, the court did not add such language. Nevertheless, it would be equally applicable.

If anything, it would be more so. In Hirsch, there remained the factual question whether Hirsch requested a notice of appeal be filed.

In the case at bar, 13 months of imprisonment depended on the outcome in Booker. Even if Smith did not specifically ask that a notice of appeal be filed, it is unfathomable that Smith did not want his appellate rights preserved.

Therefore, it could be considered ineffective assistance of counsel per se for his attorney to not file an appeal, when that was the only way to preserve the rights.

– David Ziemer

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David Ziemer can be reached by email.

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