Sunday, February 15, 2015

Case o' The Week: 3553 and IAC - Ninth limits information permitted for variances

   No limitation* shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. Section 3661, available here.
   (* No limitation, except for those carved out by the Courts of Appeal). United States v. Dibe, 2015 WL 542735(9th Cir. Feb. 11, 2015), decision available here.

Players: Decision by visiting Sixth Senior Circuit Judge Gilman, joined by Judges Graber and Callahan.

Facts: Dibe, and co-participants in Nigeria, ran a wire fraud scheme by contacting U.S. victims and telling them they had won a lottery or an inheritance. Id. Dibe represented
himself as diplomat “John Brown,” and solicited money from the victims to expedite the lottery winnings or inheritance proceeds. Id. Surprisingly, there was no actual lottery or inheritance; Dibe and his colleagues kept over a million dollars in proceeds for themselves. Id. Dibe was indicted, and extended negotiations produced a plea agreement with a range below that ultimately adopted by the district court. Id. Time to accept the deal was short -- Dibe later asserted that counsel did not explain the “tremendous benefits of the plea agreement.” Dibe rejected the deal. Id. Dibe later entered an open plea to wire fraud, and got a 120-month sentence (below the guideline range). Id. at *1. New counsel was appointed after the plea and before sentencing. New counsel argued I.A.C. at sentencing and urged a downward variance. Id. at *2. The district court rejected that argument, adopted (higher) guideline calculations, but still varied downwards on other bases. Id.

Issue(s): “Dibe now appeals on the ground that his sentence would have been even lower if the district court had considered Dibe’s ineffective-assistance-of-counsel claim as a mitigating factor under 18 USC § 3553(a).” Id. at *1. “Dibe seeks a limited remand that ‘affirms the district court’s authority to exercise its discretion and consider appellant’s ineffective assistance of counsel argument in full.’ He claims that the district court erred in (1) its belief that it lacked the authority to consider ineffective-assistance-of counsel claims at sentencing and (2) its failure to consider such a claim as part of the complete history and characteristics of the defendant under 18 U.S.C. § 3553(a)(1) and the mandate to promote respect for the law under § 3553(a)(2)(A).” Id. at *4.

Held:We conclude . . . that neither claim has merit.” Id. “We . . . conclude that the district court’s failure to consider ineffective assistance of counsel as a sentencing factor was not a procedural error, significant or otherwise.” Id. at *6. “[A] downward departure or variance at sentencing is not the appropriately tailored remedy for ineffective assistance of counsel.” Id.

Of Note: Does Judge Gilman’s name seem familiar? Remember the remarkable Maloney en banc case, where the (then) CJ Kozinski suggested an AUSA take the video of the argument back to the US Attorney and discuss the proper conduct of federal prosecutors? See en banc blog here
  The spark that fueled that en banc call was a terrific dissent in the original panel case – a dissent penned by visiting Judge Gilman. See blog on original three-judge panel decision here.  

How to Use: “A more appropriate remedy for the ineffective assistance of counsel would be to allow Dibe to withdraw his guilty plea, or to require the government to re-extend its proposed plea agreement.” Id. at *7. While Judge Gilman closes one door on IAC as a Section 3553(a) variance, he leaves another wide open for these other options.
   Take particular note of the idea of forcing the government to re-extend its deal. Judge Gilman cites Johnson v. Uribe, 700 F.3d 413, 426 (9th Cir. 2012) for that proposition, and invites Dibe to bring that claim on a Section 2255 habeas. Id. at *6. Remember these alternatives when inheriting a mess of a case.  
For Further Reading: In a remarkable victory, Penn. Governor Tom Wolf last week declared a moratorium on the death penalty. See article here. Nearly 200 inmates will receive temporary reprieves until a report on capital punishment is complete. Id. Governor Wolf's reservations over a “flawed system” required a “step back to examine the effectiveness of a system fraught with racial disparity, constant reversals, and the infinite warehousing of prisoners . . . “ Id. 
  While far from a permanent win, this is an important step in the right direction (and a fine example for California's Governor Brown, as he mulls his own legacy).

Image of “Free Money” mousetrap from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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