Academic journal article The Yale Law Journal

Federal Sentencing Error as Loss of Chance

Academic journal article The Yale Law Journal

Federal Sentencing Error as Loss of Chance

Article excerpt

In July 2010, a federal district court sentenced DeAngelo Whiteside to seventeen years and six months in prison for a drug offense. (1) Under Fourth Circuit precedent, Mr. Whiteside's two prior state drug convictions triggered application of the Federal Sentencing Guidelines' "career offender" enhancement. (2) On the facts of Mr. Whiteside's case, the Guidelines recommended between twenty-one and twenty-eight years in prison. (3) The district court arrived at its ultimate sentence after granting the government's motion for a shorter sentence due to Mr. Whiteside's cooperation. (4)

If Mr. Whiteside had been sentenced just over a year later, he would not have been a "career offender." (5) In 2011, the Fourth Circuit determined that the Circuit had misinterpreted which state convictions qualify as "prior felony convictions" that trigger the career offender enhancement. (6) Under the proper interpretation, Mr. Whiteside's prior offenses would not have warranted a heightened recommended sentence. (7) Instead, the Guidelines would have recommended a maximum prison term of roughly fourteen years and six months. (8) Assuming the same downward departure, Mr. Whiteside's sentence, if determined today, would be nine years and four months--a difference of about eight years of his life. (9)

Federal courts are currently locked in a debate over what to do with sentences like Mr. Whiteside's, in which the sentencing court misapplied (10) the Federal Sentencing Guidelines' career offender enhancement. (11) The core issue in this debate is whether misapplication of the Guidelines may be challenged post-conviction on collateral review. (12) In these cases, the sentencing court's application of the legal standard for career offender status has been invalidated, typically because the circuit's interpretation of a "prior felony conviction" has changed. (13) The sentencing court's use of that legal standard is, in retrospect, an erroneous application of law. (14) The question is whether such misapplications of law are cognizable in a later challenge under 28 U.S.C. [section] 2255. (15)

The test for cognizability in these cases is whether sentencing error constitutes a "complete miscarriage of justice." (16) If it does, then sentences like Mr. Whiteside's can be challenged on collateral review; if it does not, these sentences stand. Of the four circuits that have applied this test, the Seventh, Eighth, and Eleventh have held that career offender misapplication is not a fundamental miscarriage of justice. (17) The First Circuit recently found a career offender claim cognizable on its facts but declined to consider whether sentencing errors arising from a change in legal interpretation give rise to a [section] 2255 challenge. (18) In Whiteside, after a Fourth Circuit panel held that the error amounted to a fundamental miscarriage of justice, an en banc court reversed on the grounds that Mr. Whiteside's appeal was untimely. (19) All of these decisions, except the First Circuit's, hinged on a single vote. (20) Two were en banc. (21)

This Comment argues that courts have taken the wrong approach to cognizability. Circuit court opinions, and scholarly analysis of these opinions, have framed the argument over misapplication of the career offender enhancement as a conflict between individual fairness--the righting of a wrong by the legal system to an erroneously sentenced individual--and finality-the criminal justice system's interest in leaving final sentences undisturbed. (22) This Comment contends that disagreement over the cognizability of these claims is actually about the nature of the harm in sentencing error. What federal courts are asking, in effect, is whether the lost probability of a lower sentence is itself a cognizable injury. Despite the prevalence of language about "probability" and "risk" in the career offender opinions, (23) courts rarely articulate the sentencing debate in these terms. This Comment focuses on the latent probability analysis in sentencing opinions. …

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