Relief Granted to 2255 Petitioner Who Did Not Receive Effective Assistance of Counsel in Sentencing Process

US v. Washington, 2010 WL 3786159 (Kan), 9/30/10 - Denial of 2255 petition reversed. Defendant was represented in this crack distribution case by attorney who knew nothing about how federal sentencing works. Defendant was convicted at trial of three sales involving a total of 61.98 grams. Attorney let client go to presentence interview alone and gave him no advice whatsoever about the purpose of the interview or what subjects to avoid. Client admitted to other sales and got tagged with an additional 2.5 kg as part of relevant conduct. This was ineffective assistance, and client suffered prejudice because, without the 2.5 kg, he would have been eligible for 3582(c) sentence reduction based on the Sentencing Commission's lowering of the maximum base offense level. Although US v. Gordon, 4 F3d 1567 (19th Cir. 1993), held that the presentence interview itself is not a critical stage of the proceeding, hence no Sixth Amendment right to counsel, and that failure to accurately predict the sentence is not ineffective assistance, the sentencing process itself is a critical stage and counsel had an affirmative duty to advise client about what it entails and how to handle it.

Judge Tacha dissented. She thought Gordon was controlling, and that it made no sense to treat advice about the presentence interview as separate from the interview itself. The district court agreed, very reluctantly, with this position, and therefore felt constrained to deny the petition.