Appellate Attorneys Don't Have to Read Advance Sheet Opinions

By William Peacock, Esq. on August 26, 2014 | Last updated on March 21, 2019

Raphael L. Donnell was convicted of conspiring to distribute ecstasy. His career offender sentence enhancement was upheld on appeal to the Eighth Circuit, but while the appeal was pending, King v. United States was decided by the same circuit court. King would have nixed the sentence enhancement, but his attorney didn't notice the opinion because it was handed down after briefing in Donnell's case, but before his sentence was affirmed.

King holds that when two concurrent and equal sentences are handed down, and one of them doesn't qualify for criminal history points, there's no way to determine whether either can qualify as a predicate for career offender status. In these rare instances, the benefit of the doubt lands in the defendant's favor thanks to the Rule of Lenity. King is now on shaky ground, rejected by the neighboring Sixth Circuit, and treated to a multi-page dicta rant here.

Is King dead? And was Donnell's counsel ineffective for not reading our blog and studying every opinion that came out of the Eighth Circuit while his client's case was pending?

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Dropping Dicta Disagreement With Past Panel Precedent

The panel explains the paradox of concurrent identical sentences and the career offender enhancement:

The term "two prior felony convictions" in § 4B1.1(a)(1) means two qualifying felony convictions that "are counted separately under the provisions of § 4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(c). "The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1." U.S.S.G. § 4B1.2 comment. (n.3). Under § 4A1.2, when prior offenses were not separated by an intervening arrest, multiple sentences imposed on the same day are counted as a single sentence, using "the longest sentence of imprisonment if concurrent sentences were imposed." § 4A1.2(a)(2).

Think of this like the world's worst video game: You score criminal history "points" for offenses, but if you double-up on offenses that are sentenced all at once, you don't get double-credit -- the longest sentence is determinative.

And in order to get the "career offender" bonus level, you have to have two offenses that are violent or drug-related felonies, both of which must also "count" points-wise.

The problem is, only the longer sentence, which isn't always a predicate felony, qualifies for points. And when two sentences (one possibly a predicate, one non-predicate) have the same length, and are imposed concurrently, it's impossible to say which sentence counts for "points."

According to King, since it can't be definitively pinned to either, neither can count as a predicate offense, since an offense must count points-wise.

(The fourth time you read that, it'll make sense -- we promise. And blame the U.S.S.C. for making such shoddy guidelines.)

King was the first to decide "whether a predicate offense may be 'counted' for career offender purposes only if it received the longest sentence in a group of offenses that received concurrent sentences and are counted as a single sentence under § 4A1.2(a)(2)."

The Sixth Circuit, however, addressed the issue this year, and firmly rejected King, calling it a "ridiculous result" that cannot be squared with Congress' intent. Why? The result "is counterintuitive because it is based on the premise that a defendant should receive a lower sentence because he has more prior convictions."

The majority of this panel agrees with the Sixth Circuit. Judge Bye, however, disagrees, arguing that "the role of this court is to apply the guidelines as written, not to rewrite the guidelines because we are intellectually unsatisfied with the results."

No Court-Stalking Required

Which bring us to the punch line: that was all really fascinating dicta about a sentencing paradox. Whether or not King was correctly decided:

We decline to rule that Strickland requires an appellate attorney to read advance sheets and consider newly-decided cases in the weeks or months after a direct appeal is fully briefed, argued, and submitted for decision.

No ineffective assistance claim for Donnell, no mandatory blog studying for you.

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