Fascinating split Fourth Circuit ruling finds lawyer ineffective and 210-month sentence substantively unreasonable for addicted opioid distributor
A helpful reader made sure I did not miss an amazingly interesting split Fourth Circuit panel ruling today in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here). I recommend the entire lengthy decision, which could probably serves as a foundation for a dozen federal sentencing classes because of all the issues raised, both directly and indirectly, by the case. Here is the start and a few key parts of the 21-page majority opinion authored by Judge Gregory:
Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing....Because Freeman’s counsel unreasonably failed to argue meritorious objections [to the presentence report's guideline calculations] and advised his client to waive those objections without understanding the gravity of that waiver — and because those objections would have resulted in a reduction of the Guidelines range applicable to Freeman’s sentence — counsel was constitutionally ineffective....
In sentencing Freeman to serve 210 months, the district court did not address sentencing disparities nor fully consider the history and circumstances of the defendant in relation to the extreme length of her sentence. With regard to sentencing disparities, counsel provides this Court with data obtained from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing Statistics tending to show that Freeman’s sentence is significantly longer than those of similarly-situated defendants...
Based on the disparity between her sentence and those of similar defendants, and on the overwhelming record evidence of Freeman’s addiction to opioids, we conclude that Freeman has rebutted the presumption of reasonableness and established that her sentence is substantively unreasonable. To the extent that the court referenced the danger of opioids in sentencing Freeman, it was only to condemn Freeman for selling them. While this was certainly not an improper factor for the district court to consider, it also does not reflect the full picture. And although the district court stated that Freeman was “no doubt a major supplier” of hydrocodone, it failed to consider that the amount that Freeman sold was frequently no more than half of what she was taking herself.
Judge Quattlebaum's dissent runs 26 pages and it includes some scatter plots! It starts and ends this way:
This sad case illustrates the opioid epidemic ravaging our country. Precias Freeman is a victim of this epidemic. As a teenager, she succumbed to the highly addictive nature of opioids in a way that continues to wreak havoc on her life. As a fellow citizen, I am heartbroken over the toll her addiction has levied. But Freeman chose to be a culprit too. By her own admission, she prolifically forged prescriptions to obtain opioids for years — not just for herself, but to sell to others. Whatever role her addiction played, that conduct was plainly criminal and certainly not bereft of “victims.” Maj. Op. at 21. Thus, today, we consider the sentence she received after pleading guilty of possession with intent to distribute two opioids, Hydrocodone and Oxycodone. The majority vacates Freeman’s sentence for two reasons. It concludes that the sentence was substantively unreasonable and that Freeman received ineffective assistance of counsel. Both holdings are unprecedented in our circuit....
I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.
For a host of reasons, I hope the Justice Department has the good sense not to seek en banc review and that resentencing, rather than further costly litigation over a suspect and long prison term, is the next chapter is this all-too-common variation on the modern story of the opioid epidemic.
Comments
Post a Comment