Court finds argument frivolous

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When facing an issue of first impression in the Seventh Circuit, an attorney should be able to make an argument that has been accepted by another circuit, without any worry that the argument may be found frivolous.

However, a Jan. 16 Seventh Circuit opinion demonstrates that is not necessarily the case. Six defendants were convicted of drug charges under a 14-defendant indictment in Illinois, and wanted to appeal their sentences. However, only two of the defense attorneys filed appeals.

The other four filed no-merit briefs and moved to withdraw as counsel.

One of the defendants, Montrell McSwain, responded to his attorney’s no-merit brief.

All four had received five-year sentences, pursuant to 18 U.S.C. 924(c)(1)(A), consecutive to their underlying drug conspiracy sentences.

The statute requires a mandatory consecutive sentence for a defendant convicted of possessing a gun in furtherance of a drug crime.

However, it is limited by the following language: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law…”

McSwain argued that the statute precludes a sentencing court from imposing an additional term of imprisonment, because he was already subject to a 20-year mandatory minimum on the drug charge — a sentence greater than the five-year minimum on the gun charge.

This argument was recently adopted by the Second Circuit in U.S. v. Whitely, 529 F.3d 150, 158 (2d Cir. 2008).

Five other circuits have rejected the argument, and it was an issue of first impression in the Seventh Circuit.

Despite the Second Circuit’s opinion, the court held McSwain’s argument was frivolous, and accordingly, granted the four attorneys’ motions to withdraw as counsel.

The court agreed with the majority of the circuits to consider the issue, holding that the “except” clause does not apply to the drug trafficking crimes underlying a sec. 924 conviction.

The court wrote, “Although the issue is one of first impression in this circuit, that does not automatically lead to the conclusion that it is nonfrivolous and cannot be resolved in an Anders posture without briefing.”

The more natural reading of the statute, the court found, “is that a defendant convicted under sec. 924(c)(1) shall be sentenced to a term of imprisonment set forth in sec. 924(c)(1)(A) unless subsections (c)(1)(B) or (c)(1)(C), or another penalty provision elsewhere in the United States Code, requires a higher minimum sentence for that sec. 924(c)(1) offense.”

The court added that a sec. 924(c)(1) sentence is not a sentence, but a stand-alone crime, and thus, it would make no sense to read it as prohibiting additional punishment: “A determination of guilt that yields no sentence is not a judgment of conviction at all.

And a sentence of zero months cannot be served consecutively to another sentence.”

Accordingly, the court held that McSwain’s proffered interpretation would be frivolous, and dismissed the appeals of the four defendants whose attorneys filed no-merit briefs.

Case analysis

The court matter-of-factly states that, just because an issue is one of first impression in the Seventh Circuit, that does not preclude a finding that an argument would be frivolous.

Of course, this is self-evident; the very reason an issue may be one of first impression is that no self-respecting attorney would raise a particularly absurd argument.

Here, however, there was a Second Circuit opinion that had adopted the argument put forth by McSwain.

This is a very different situation than the cases the court cites as authority for its statement: U.S. v. Lopez-Flores, 275 F.3d 661 (7th Cir. 2001); and U.S. v. Morris, 2008 WL 5101636 (7th Cir., Dec. 5, 2008).

In Lopez-Flores, four circuits had previously considered the argument at issue; all ruled in favor of the government. In Morris, one circuit had, and had ruled in favor of the government.

Thus, the holding in this case regarding frivolousness is not supported by the precedents the court cites.

Furthermore, it is contrary to common sense that an argument can be frivolous, when another panel of United States Court of Appeals’ judges has adopted it.

The situation is similar to a recent U.S. Supreme Court case with a curious procedural history, Burgess v. U.S. (2008).

In the district court, Burgess raised the issue whether a prior misdemeanor state court drug conviction can be a “felony drug offense” under federal law. The district court overruled the defendant’s objections and held that it was.

Burgess’ defense counsel filed a no-merit brief with the court of appeals, even though there was a circuit split on the issue. The D.C. Circuit had held the prior conviction could not be a felony, and the First Circuit held that it could. U.S. v. West, 393 F.3d 1302 (D.C.Cir.2005); U.S. v. Roberson, 459 F.3d 39(1st Cir.2006).

Given the circuit split, the Fourth Circuit did not hold the argument frivolous; it directed the government to file a response, and notified Burgess of his right to file a pro se supplemental brief. After considering the merits, the court affirmed that the state court misdemeanor conviction was properly considered a “felony.”

Ultimately, the U.S. Supreme Court granted review in the case, and affirmed.

Thus, despite Burgess’ counsel’s determination that the case raised no non-frivolous issues, it had an issue significant enough to generate a split in the circuits, and review in the U.S. Supreme Court.

The issue in the case at bar may not be important enough to warrant review in the U.S. Supreme Court. However, the mere fact of a circuit split should be enough to hold any issue of first impression non-frivolous.