Monday, October 23, 2006

U.S. v. Santiago (9th Cir. - Oct. 23, 2006)

When you're defending someone who may well be sentenced to 25+ years in prison, it may help to actually pay attention. Imagine, for example, that your client -- let's call him, hypothetically, Jesus Santiago -- has been convicted of distributing methamphetamine, and under the guidelines the appropriate sentence depends a lot on how much meth he distributed. He only actually sold, say, three kilos to the cops, but the PSR nonetheless suggests that he be sentenced for selling 17 to 104 kilos, since he's almost certainly been doing this for a while.

Wouldn't you go ahead and make an objection to the PSR on that ground? After all, we're talking years and years of additional time in a not-so-fun prison, after all. And wouldn't you definitely, totally, for sure make a written objection to the PSR if the district court judge -- let's say, again hypothetically, Judge Terry Hatter -- doesn't seem to like like the way in which the amount of drugs were calculated, and even says on the record that he "ha[s] some concern about how the total amount of drugs was arrived at"?

Sure, Judge Hatter's sentence ends with a proposition. But that's no reason not to object to the PSR.

Sadly -- at least for the hypothetical Jesus Santiago in this not-so-hypothetical case -- counsel for the defendant doesn't seem to be paying attention, and makes no such objection. And hence, absent such an objection, the Ninth Circuit reviews only for plain error, and affirms Santiago's 25-year sentence.

Sorry, Santiago. Hopefully next time -- when you're 60 or so -- your lawyer will have gotten more sleep the night before.

There's always an ineffectiveness claim on habeas. Good luck with that.