In Dell v. U.S., No. 11-12904 (Feb. 27, 2013), the Court rejected a claim that defense counsel was constitutionally defective, under Strickland v. Washington, for failing to argue, either during sentencing or on direct appeal, for a downward variance based on the substantial disparity between the Sentencing Guidelines’ treat of crack and powder cocaine.
At the time of Dell’s direct appeal to the Eleventh Circuit, the Supreme Court had already decided Kimbrough, which held that a district court was authorized to grant a downward variance based on a policy disagreement with the crack guidelines. On appeal, Dell’s appellate counsel failed to seek a vacatur of the sentence based on Kimbrough. Dell’s co-defendants did press the issue, and ultimately, at resentencing, received lower sentences; Dell did not.
Since Dell’s counsel in the district court had also failed to raised a Kimbrough-type argument, the appeal could only have raised Kimbrough in a “plain error” argument.
The Court noted that competent counsel would have been able to show error, because under pre-Kimbrough law the district court treated the crack guideline as mandatory. The error would have been “plain” at the time of appeal. But appellate counsel would not have been able to show that the error affected his substantial rights. Nothing in the record in the district court at the original sentencing indicated that the district court would have imposed a lower sentence, even had a Kimbrough argument been made. Where the record does not provide any indication that there would have been a different sentence, the party with the burden of showing a difference loses. Thus, appellate counsel could not have shown that substantial rights would have been affected. Dell in turn did not receive ineffective appellate assistance of counsel, since he was not prejudiced by counsel’s performance.
The Court also held that trial counsel was not deficient at sentencing for failing to anticipate Kimbrough. The Court noted that it has never required counsel to anticipate future legal developments. Lawyers rarely, if ever, are required to be innovative to perform within the wide range of conduct that encompasses the reasonably effective representation mandated by the Constitution.
[Martin, J., concurring, questioned the Circuit’s rule that substantial rights are not affected when the Court cannot know whether the outcome would have been different. Martin noted that a sentencing hearing is not a forum for a judge “to air his list of grievances” about existing law. Martin noted that in view of a statement by the district court at a subsequent resentencing, Dell likely would have received a lesser sentence had his appellate counsel pressed the Kimbrough issue. Martin nonetheless stated she was bound by Circuit precedent to join the majority].