On August 1, 2016, the Sentencing Guidelines “crime of violence” amendment will take effect, reflecting the Supreme Court decision, Johnson v. United States. The benefits of these changes were previously discussed by Paige Nichols here, but this is a substantive amendment and will not apply retroactively. Some clients would fare much better—some by many years—if sentenced on August 1 rather than on July 31, 2016.
According to reports from defense counsel, some of our District of Kansas courts are granting defense motions to continue sentencings past August 1, 2016 (even over the government’s objection), while some other courts are granting a variance equal to the sentence that would be imposed on or after August 1, 2016. Either of these approaches protect the clients and allow them the benefit of the favorable changes in the Guidelines. Some prosecutors, too, will agree to the adjustment.
Failure to ask for either a continuance or variance when your client could benefit from the new amendment may be deemed ineffective assistance of counsel. In United Statesv. Abney, the D. C. Circuit held that Mr. Abney was denied his Sixth Amendment right to effective assistance of counsel because his attorney did not ask for a continuance of his sentencing. The sentencing was held between the time when Congress passed the Fair Sentencing Act (FSA) and when the President signed the Act into law. The difference to the client was a mandatory minimum sentence of ten years, rather than five years.
Defense counsel in Abney clearly knew that the Act was on the brink, yet he did not ask for a continuance. The Court observed, “Where sentencing benefits are available under existing law, this court has concluded that counsel is ineffective when he fails to advocate on his client’s behalf at sentencing.” The Court then held that “[o]bjectively reasonable counsel would have sought a continuance to ensure that Abney was sentenced after the FSA became law. There was no strategic reason not to, and the failure to do so was unjustified because ‘it cost the defense nothing and the possible benefit was undoubtedly significant.’”
The same could well be true with the “crime of violence” amendment if counsel does not take some affirmative action. This Guideline amendment could eliminate a Career Offender predicate or knock off up to ten base offense levels in a felon-in-possession case. Protect your client—request a continuance or seek a variance to a sentence that would be imposed under the new amendments.