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Sentencing objections waived

By: dmc-admin//October 29, 2007//

Sentencing objections waived

By: dmc-admin//October 29, 2007//

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Two Seventh Circuit opinions issued Oct. 19 discuss the distinction between waiving and forfeiting objections. However, the court’s methodology leaves much to be desired.

In the first case, Damien Brodie was convicted after trial of possession of cocaine and marijuana with intent to distribute. The police conducted two separate searches, but Brodie filed a pre-trial motion to suppress only the fruits of the second search.

At sentencing, he made only two objections: to an offense-level increase for using a firearm; and to an offense-level increase for perjury.

The district court denied them both, and asked if there were any other objections. Brodie an-swered, “Not really.” The court then sentenced Brodie to 240 months imprisonment.

Objections to Sentence

On appeal, Brodie raised two new objections to the sentence: use of the guidelines’ 100:1 crack-to-cocaine-powder ratio; and the use of prior criminal convictions that were not proven beyond a reasonable doubt to a jury. He also contended that the first search was unlawful.

The court of appeals affirmed, in a decision by Judge Michael S. Kanne.

The court began with a short review of the difference between forfeiture and waiver.

Waiver occurs when a defendant intentionally relinquishes a known right, precluding appellate review. Forfeiture occurs when a defendant negligently fails to timely assert a right, allowing appellate review, but only for plain error.

Addressing the objection to the search, the court declined to consider the merits. The court acknowledged that there was no evidence in the record of an intentional relinquishment of the motion to suppress, and thus, he forfeited, rather than waived the issue. However, because Brodie offered no “good cause” for not filing a suppression motion in the district court, the court declined to consider the merits.

Turning to the sentencing issues, the court concluded that Brodie waived, rather than forfeited them.

The court wrote, “Brodie objected to certain parts of the PSR and stated on the record that he did not have any further objections when asked by the district court. This seems to us the paragon of intentional relinquishment (cites omitted).”

Waiver Versus Forfeiture

The court acknowledged that, in U.S. v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005), it held that “a lawyer’s statement at sentencing that the defendant does not object to anything in the presentence report does not inevitably constitute a waiver.”

However, Jaimes-Jaimes also holds that, when a defendant selects among arguments as a matter of strategy, he waives those he did not present. Id.

Where the government can offer no strategic reason to forego an objection, and defense counsel would be deficient for not raising it, then forfeiture applies, and review is for plain error. Id.

On the facts in this case, the court concluded that counsel could not be deemed deficient for not making the objections raised on appeal by Brodie. Alemdnarez-Torres v. U.S., 523 U.S. 224 (1998) permits the use of prior convictions at sentencing, without submission to the jury; and U.S. v. Miller, 450 F.3d 682 (7th Cir. 2006), reaffirms use of the 100:1 crack to powder ratio.

The court thus found two reasons to affirm the sentence: there was good reason for counsel not to raise the objections, so the objections were waived; and even if the objections were only forfeited, there is no plain error, because precedent supports the enhancements.

Sanchez Decision

In the second case, Julio Jose Leon San-chez was convicted of distributing cocaine and felon in possession of a firearm.

Prior to sentencing, Sanchez filed several pro se objections. One objected to the PSR’s conclusion that he used a shotgun in connection with the cocaine distribution offense.

Sanchez contended that the shotgun was not used “in connection” with the offense, because he merely accepted the shotgun as payment for the cocaine.

At the sentencing hearing, however, Sanchez’s attorneys stated that Sanchez wished to withdraw his pro se motions.

Sanchez’s counsel then objected to other aspects of the PSR, concerning the use of several prior convictions in calculating his criminal history. Counsel also objected to an enhancement based on the firearm’s status as a stolen weapon. The district court denied the objections, and sentenced Sanchez to 78 months.

Sanchez appealed on all of the issues raised by counsel, and reasserted his pro se objection to the finding that he used the firearm in connection with another felony.

However, the court of appeals affirmed in a decision also written by Judge Kanne.
After affirming the district court’s determinations on the issues raised by Sanchez’s counsel, the court turned to Sanchez’s argument regarding the firearm.

As in Brodie’s case, the court cited Jaimes-Jaimes, holding that Sanchez intentionally waived the objection in the district court, because he elected, as a matter of strategy, to pursue his counsel’s objections, while foregoing his pro se objections. Accordingly, the court affirmed.

Case analysis

The decisions reflect an arbitrary distinction between waiver and forfeiture, and between pre-trial motions and sentencing objections.

The court in Brodie concluded that his failure to object to the first search was not a waiver, but only a forfeiture, and the issue could be raised on appeal if he could show good cause for not raising it in the district court.

The court reached this conclusion, even though he did move to suppress the fruits of a second search of his home.

In contrast, the court concluded that he waived the sentencing objections, because he raised other objections at sentencing, but not those he asserted only on appeal.

The court wrote, “when the defendant selects among arguments as a mater of strategy, he also waives those arguments he decided not to present.”

The statement would be equally true with respect to the motion to suppress; it fact, it would be even more true.

Where a defendant’s attorney files a motion to suppress the fruits of one search, but not another, there clearly has been an intentional determination that, even though a motion to suppress on Fourth Amendment grounds could be raised as to the second search, it would lack merit.

Fourth Amendment issues may be complex, but generally can be divided into a few issues that are frequently interrelated, either legally or factually: expectation of privacy; consent; probable cause; reasonable suspicion.

The same is not true of sentencing. The sentencing guidelines are long and complex, and involve hundreds of very distinct issues. A defense decision to object to the inclusion of relevant conduct, for example, says nothing about whether the defense has made an intentional decision not to object to the calculation of his criminal history.

Yet the court attaches more significance to the failure to object at sentencing than to the failure to file a suppression motion.

A better reason for a waiver/forfeiture distinction would be one based on the distinction between issues of law and issues of f
act.

Here, Brodie did not object at sentencing to the 100:1 ratio that exists between crack and powder cocaine in calculating drug quantity. The appropriateness of that ratio is a purely legal issue. The same is true of Sanchez’s issue — whether accepting a gun as payment for drugs constitutes using a firearm in connection with another felony.

If a defendant fails to raise a purely legal argument, and the argument is a winner, that is counsel’s fault for not raising it, not the defendant’s, and review should be for plain error.

Suppose, however, that the PSR says that the defendant sold two kilograms of cocaine, when he actually only sold one. The defendant should know how many kilograms he sold, and if he fails to tell his attorney (or the court) that he sold only one, waiver is appropriate; he should be precluded from arguing on appeal that he sold only one.

The same distinction works equally well for pre-trial issues, such as motions to suppress. If the defendant and the police officers agree as to the facts of a search, then the question whether the search is lawful is a purely legal one.

If the search was unlawful, but the attorney failed to file a suppression motion, then it should be a forfeiture, and review should be for plain error. The defendant can’t be expected to know whether a search on undisputed facts was lawful or not. It is his attorney’s job to know the law of search and seizure, and move to suppress if a search was unlawful, and the defendant should not be deemed to have waived the issue.

If the defendant disagrees as to the alleged facts, however, waiver is likely more appropriate. Suppose the police reports indicate the defendant consented to a search, but the defendant fails to claim before trial that he did not.

That defendant should not be allowed to claim, for the first time on appeal, that he did not consent to the search. The failure to raise the factual discrepancy should waive the issue.

It would thus be more principled to distinguish between factual and legal objections in deciding whether a defendant waived or forfeited an argument (allowing that there may be exceptions to this general rule), than to arbitrarily distinguish between pretrial motions and sentencing objections.

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