In granting a writ of habeas corpus based upon a Lafler challenge, the Sixth Circuit ordered a district court to impose a specific sentence. In essence, the Court of Appeals guaranteed the defendant a more certain outcome than the defendant could have obtained through the plea bargaining and sentencing processes. That result is not required by Lafler and is inconsistent with a previous decision in the Sixth Circuit.
In Lafler v. Cooper, the Supreme Court held that a criminal defendant can demonstrate ineffective assistance of counsel during the plea bargaining process even if that defendant is subsequently convicted in a Constitutionally sound trial. 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). But the question of how to remedy the Sixth Amendment violation is the more difficult to resolve. As the Supreme Court noted, such a remedy must “‘neutralize the taint’ of the constitutional violation . . . while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution.” Id. at 1388-89. Nevertheless, the Court appeared to give specific guidance on what the remedy should be if a defendant proved the violation: “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” Id. at 1389.
In the case before the Sixth Circuit, the Government conceded that defense counsel’s performance was deficient. After losing a suppression motion, the defendant had conditionally pled guilty and received a 210 month sentence. The Court of Appeals reversed the suppression decision. Upon advice of counsel, the defendant withdrew his plea agreement upon remand. But the Government’s case got better, not worse, after suppression. The Government offered another plea offer in which it agreed to request a downward departure and recommend the same 210 month sentence. The defendant rejected the offer, went to trial, and received a 420 month sentence. The Sixth Circuit found defense counsel provided ineffective assistance when counseling the withdraw of the initial plea agreement.
As noted above, the Sixth Circuit ordered the district court to impose the same 210 month sentence the district court imposed prior to the reversal of the suppression motion. In so doing, the Sixth Circuit appears to assume that the Government would have made no different arguments at resentencing and that the district court would have imposed the same sentence. Perhaps that assumption can be limited to the complex procedural nature of this particular case, but the Sixth Circuit’s order of a certain sentence provides an opening for others with Lafler claims to argue for similarly specific relief.
The case discussed above is Jones v. United States, 11-5136 (6th Cir. November 5, 2012).