United States v. Spaeth

United States v. Spaeth, 69 F.4th 1190 (10th Cir. 2023) (to win on collateral constitutional challenges to a plea agreement based on ineffectiveness of counsel, defendant must show that counsel’s ineffectiveness produced an involuntary and unknowing plea). In 2016, Mr. Spaeth pled guilty in an 11(c)(1)(C) plea agreement to conspiracy to distribute methamphetamine. In exchange for the guilty plea, the government agreed to dismiss numerous other charges and to recommend a binding sentence of 180 months imprisonment. Mr. Spaeth stated in the agreement and at his plea colloquy that he freely, voluntarily, and knowingly entered into the plea. His plea agreement also included a broad waiver of appellate rights, with carve-outs for a sentence outside the agreed upon sentence and for a collateral attack based on ineffective assistance of counsel. After Mr. Spaeth was sentenced, the federal government began an investigation into a drug smuggling operation at the facility where Mr. Spaeth had been housed while his case was pending. The government subpoenaed recordings of phone calls outgoing from the prison, including attorney-client communications. In 2018, the Kansas FPD office was appointed to represent over 100 defendants with potential Sixth Amendment claims based on the government’s listening to attorney-client calls. The district court imposed an inference against the government that it was privy to communications between the petitioners and counsel. The AUSA on Mr. Spaeth’s case denied listening to any of his calls by affidavit. Mr. Spaeth filed a § 2255 motion to vacate based on the Sixth Amendment violation. In a nut-shell, the district court found that the problem with Mr. Spaeth’s claim was that it did not even so much as allege that ineffective assistance of counsel resulted in an unknowing and involuntary plea, which the district court ruled was the only way he could qualify for relief given that he pled guilty. Though the court invited him to provide supplemental briefing on the question whether his plea was knowing and voluntary, he instead sought a COA from the Tenth Circuit and the district court dismissed his § 2255 motion. Before getting into a discussion on the merits, the Tenth Circuit set forth a summary of the state of the applicable law, the main point of which was this: collateral attacks on guilty pleas based on pre-plea constitutional defects, even if the defects were unknown (or unknowable!) at the time, only qualify a defendant § 2255 relief where the error meant that his plea was not knowing and voluntary. Where the challenge involves a claim of ineffective assistance of counsel, that ineffective assistance must have caused the plea to be unknowing or involuntary. “In other words, counseled guilty pleas occasioned by antecedent constitutional violations require, at a minimum, that habeas challengers attack the plea advice they received.” In this way, a defendant convicted by a guilty plea is treated differently than a defendant convicted after trial in the habeas world. “The focus of federal habaes inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.” Tollett v. Henderson, 411 U.S. 258 (1973). The court noted that there are four “narrow” exceptions to this rule, none of which applied here. Mr. Spaeth argued that the carve-out provisions in his plea agreement, particularly the ineffective assistance one, meant that this standard for plea agreements did not apply to his arguments within the carve-out. Specifically, he argued that the government had itself waived the Tollett standard by agreeing to the carve-out. The Tenth Circuit dispensed with this idea quickly. In response to the question “what effect, if any, the carve-out provision . . . has on the rule of Tollett,” the Tenth Circuit stated: “the short answer is none.” The Tenth Circuit balked at the idea that the government could ever waive the Tollett standard. Next, Mr. Spaeth argued that the Tollett standard should not apply when the government intrudes upon attorney-client privilege. The Tenth Circuit pointed out that most of the authority he pointed to still circulates around the question whether the pleas were knowing and voluntary, so those cases were at least “overlapping” with Tollett. The only other case arose in the context of trial, where a constitutional error has more magnitude and there is an easier path to habeas relief. The Tenth Circuit thus decided that it didn’t have to accept Spaeth’s argument because there was no support requiring that conclusion, but also didn’t really address any substantive reason for rejecting it. There are a lot of words spent here on describing ineffectiveness of counsel in general. Finally, Mr. Spaeth argued that the pre-plea constitutional violations also infected sentencing. The Tenth Circuit summarily rejected this, too, affirming dismissal of the claim.

United States v. Brooks

United States v. Brooks, 67 F.4th 1244 (10th Cir. 2023) (finding of malice aforethought mens rea does not warrant application of the attempted murder guidelines cross reference) Mr. Brooks was convicted by a jury of unlawful possession of ammunition. He allegedly “shot a firearm at a car his then-girlfriend was riding in, striking her in the buttocks.” At sentencing, over objection, the district court applied the cross-reference to the attempted murder guideline, U.S.S.G. § 2A2.1. The district court also heightened his base-offense level under U.S.S.G. § 2K2.1 (without objection) based on the assumption that Oklahoma aggravated assault and is a crime of violence. On appeal, Mr. Brooks argued that 1) the attempted murder cross-reference did not apply because evidence did not establish specific intent and 2) the § 2K2.1 enhancement could not apply under the Tenth Circuit’s recent decision clarifying that Oklahoma aggravated assault and battery is not a crime of violence. U.S.S.G. § 2A2.1 The guideline for possession of ammunition, § 2K2.1, instructs court to cross-reference § 2X1.1 if the defendant use or possessed ammunition in connection with the commission or attempted commission of another offense. Section 2X1.1, in turn, instructs courts to apply the base offenses level from the guideline for that other offense. Here, the district court applied the base offense level set forth at § 2A2.1, which pertains to assault with intent to commit murder or attempted murder. Though Mr. Brooks argued that there was no evidence to establish specific intent to kill, as required for attempted murder, the district court concluded that application of the cross-reference was appropriate because evidence established the necessary intent for second-degree murder (malice aforethought). The Tenth Circuit agreed that malice aforethought was not sufficient for application of the attempted murder cross-reference, because conviction for an attempt requires specific intent to kill. The government argued that the record supported a finding of premeditation, so it supported application of the cross-reference based on attempted first degree murder. In a rare turn of events, the Tenth Circuit saw right through it. The Tenth Circuit sagely reminds us that “the only way to know whether, absent the error, the district court would have imposed the same sentence is if the district court indicated at sentencing that the sentence imposed would be the same under multiple sentencing approaches, one of which was the correct approach.” The district court did not do this. Oklahoma Agg Assault & Battery In United States v. Winrow, 49 F.4th 1372 (10th Cir. 2022), after Mr. Brooks was sentenced, the Tenth Circuit resoundingly declared that Oklahoma Aggravated Assault and Battery is not a crime of violence under the ACCA. Because the law at the time of the appeal was clear, the Tenth Circuit held that the district court’s error was plain, meeting the first and second prongs of the test for reversal under plain error review. Sadly, however, the Tenth Circuit did not feel confident that the third and fourth prongs were met because there were too many hypotheticals in determining what the sentence would have been without the error. Specifically, the court was not certain whether the district court would in fact find, on remand, that the defendant did not have the required intent for the cross reference discussed above, or whether cross-reference to another offense would enhance the base offense level so that this error would not, in fact, have an impact on sentencing. Thus, the district court vacated the sentence and remanded for resentencing based on its clarification of the intent requirement for attempted second degree murder. It instructed the district court to consider the impact of Winrow “if it becomes relevant to its guideline calculations.”