United States v. Freeman (4th Cir. January 2022), EN BANC

The Federal Docket

February 28, 2022

Sitting en banc, the Fourth Circuit reviewed the prior panel opinion in United States v. Freeman, which we discussed in this post last year. The Court held that, though this was a direct appeal without an intervening evidentiary hearing, the record was sufficient to establish that defendant received ineffective assistance of counsel at her sentencing hearing. Her lawyer had raised several meritorious objections to the PSR that significantly enhanced Freeman’s sentence but, inexplicably, he waived those before the hearing.

As we discussed in our previous post:

“The Court held that, based on the face of the record and despite the lack of an evidentiary hearing on the matter, Freeman received ineffective assistance of counsel. The Court recounted how Freeman’s attorney failed to lodge meritorious objections to the PSR and in fact waived them at sentencing over Freeman’s concerns, which did not exclude pills associated with Freeman’s personal drug use and should have been lower. Counsel had also put all of his efforts into getting Freeman in a drug court program, but the record showed he clearly did not understand the requirements for getting her in the program.

The Court also suggested that Counsel was also ineffective in waiving his objection to an obstruction enhancement which the probation officer also used to disqualify Freeman for the three-point reduction for acceptance of responsibility. The Court emphasized that Freeman’s bond violations were a result of economic hardship and near homelessness and did not reflect deliberate attempts to flee or evade arrest. Counsel waived these objections because he stated they would not affect Freeman’s sentence, and Court held he was clearly wrong, and ineffective, for doing so on that basis.

The Court concluded that the record was already sufficiently developed on its face to find him ineffective, and that the record was clear “that counsel had no strategic reason to waive straightforward legal arguments that could result in his client receiving approximately a decade less time behind bars in favor of a nonexclusive motion for entry into a diversion program.”

Regarding prejudice, the Court concluded that “the prejudice is manifest” since the Guidelines had been incorrectly calculated and her Counsel had been so “woefully” unprepared. Notably, the Court acknowledged that the district court stated it would have imposed the lengthy sentence regardless of the Guidelines, but held that incorrectly-calculated Guidelines are generally sufficient to show a “reasonably probability” that the sentence may have come out differently.”

Click here to read the en banc opinion.

On appeal from the District of South Carolina
Opinion by Gregory, joined by Motz, King, Wynn, Diaz, Thacker, Harris, and Floyd
Dissent by Quattlebaum, joined by Wilkinson, Niemeyer, Agee, and Rushing

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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