A new post by Sumter Camp on the Sixth Circuit Blog pointed me to US v. Blue, a sentencing appeal where Blue argued that the District Court should have given her a downward departure in Guideline calculation under 5K1.1 for substantial cooperation.
The problem, of course, is that even post-Booker, 5K1.1 departures must be requested by the government. On the other hand, the defendant can ask for a downward variance under 3553(a).
Blue's problem is that she never -- either in the district court or on appeal -- argued that the court could consider her assistance to the government as the basis for a downward variance under § 3553(a) as relevant to what sentence was sufficient, but not greater than necessary. As a result, she ended up waiving the argument and wasting her time on appeal.As Camp notes, the lesson for all of us is that requested departures and variances should be made under both the Guidelines and 3553(a). They're related but separate means of getting reductions, but what the Guidelines may not allow (such as a defense request for a substantial assistance reduction) 3553(a) will.
Ken Lammers at CrimLaw has this post on Whitehead v. Commonwealth from the Virginia Supreme Court earlier this month.
Whitehead was convicted of receiving stolen property. But the evidence didn't actually support that offense under Virginia law. Now, in the state's high court, and for the first time, the state argued that the conviction should be affirmed because Whitehead constructively possessed the property. You'd think that might fly, that Virginia, like Ohio, would say that a court that got the right result will be affirmed even if the court had the wrong reason. And according to Lammers that had been the law in Virginia though the Whitehead court pretty much denies that. In any event, it's the law no longer.
However, whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine. Id. This principle applies in criminal as well as civil cases. Brown v. Commonwealth, 270 Va. 414, 421 n.2, 620 S.E.2d 760, 764 n.2 (2005). Here, the Commonwealth did not argue constructive possession in the trial court or before the Court of Appeals. Consequently, we will not consider the Commonwealth’s constructive possession argument here.Since we're appellants far more often than appellees, the change in law can only be good for us.
Oh, wait, that's only in Virginia.
Those of us in Ohio just dream on.
In Paris, Texas, 18 year old Aaron Hart was caught fondling a 6 year old boy. He entered guilty pleas to five offenses and, after a sentencing trial (it's Texas; it's how they do things) at which the jury asked the judge several times about alternatives to prison but apparently got no help, he was sentenced to 100 years in prison. 100 years.
Did I mention that his attorney never did much?
The Dallas Morning News, in this report on the case, says that David Pearson, Hart's appellate counsel,
blames Hart's trial attorney, who had the burden of explaining Hart's disability to the judge and jury. That attorney, appointed by the court because Hart's family couldn't afford counsel, did not ask for special accommodations, such as a liaison who could help the defendant understand what was happening in court. Nor did he try to call witnesses who could testify to Hart's mental condition, Pearson said.At least they didn't sentence him to die. It is Texas, after all.
And he didn't get a second opinion after a court-appointed doctor found Hart competent to stand trial. That meant Hart no longer qualified for prison diversion options, like group homes and institutional settings for disabled offenders.