Not Her Fault
Fourth Circuit Finds Within-Guidelines Sentence Substantially Unreasonable After Rejecting Anders Brief, Citing History of Addiction and Drug-Company Malfeasance
District court judges often believe a within-guidelines sentence is safe from reversal on appeal. But the opioid epidemic has rocked firmer beliefs in recent years. Now it is shaking this one, at least in the Fourth Circuit.
In a 2-1 decision written by Chief Judge Gregory, the Court of Appeals held that a within-guidelines sentence of 210 months (the low-end of the district court's guidelines calculation) was substantively unreasonable because, among other things, the trial court failed to give adequate weight to the defendant's history of addiction. And that is not the only interesting facet of this case.
A Sad Story
First the facts. Precias Freeman broke her tailbone when she was around 18 years old. As part of her recovery, she was prescribed opioids and quickly developed an addiction. Twenty-one years later, she was still in the disease's thrall.
Freeman obtained the drugs by forging prescriptions, and she paid for her addiction by selling less than half of the drugs she got—mostly at below-market rates to another woman. Despite this, she was never violent or associated with others who were violent.
By the time of her arrest, Freeman was pregnant, in considerable debt, and her opioid use had increased to 60 to 80 tablets per day. In a proffer to the government, she “conservatively” estimated that she had sold 52,000 hydrocodone tablets between October 2014 and October 2016.
While she was on bond and waiting to be sentenced, she and her family were evicted from their apartment and she moved out of state with them, in violation of her bond. Nonetheless, she neither missed any court dates nor attempted to evade arrest when authorities caught up to her a few months later.
In the meantime, probation calculated her guidelines range using, not her proffer, but an earlier statement to the police, resulting in an inflated drug quantity. Despite an agreement with the government to revise the calculation downward based on the proffer, the probation department instead doubled-down and increased the quantity.
Freeman's counsel waived any objection to the increase and the department's refusal to give her credit for accepting responsibility, saying those objections "might be considered minimal" and would not affect her sentence. Instead, he focused on mitigation (in the form of Freeman's history of addiction) and an effort to gain admission to a drug court diversion program.
The district court refused and sentenced Freeman to 210 months in prison. The Fourth Circuit reversed, but in many ways that is the least interesting part of the decision.
Dear Counsel, Please Try Again
To begin with, Freeman's appointed appellate counsel at first filed an Anders brief, arguing that there were no meritorious issues to pursue on appeal. But the panel disagreed, ordering Freeman's counsel to brief substantive reasonableness and ineffective assistance of counsel.
Not surprisingly, counsel took the hint. And even less surprisingly, the panel liked the argument they suggested.
An Obligation to Make Meritorious Objections
Turning to the decision itself, the panel explained that, in addition to failing to object to the increased drug quantity calculation, Freeman’s counsel also failed to notice that an enhancement for “obstruction” likely should not have applied. While traveling to North Carolina may have counted as “avoiding or fleeing arrest,” that alone is not usually enough to support an obstruction enhancement.
The court dismissed out of hand trial counsel’s suggestion that pursuing these objections would have created a “hostile environment” in the courtroom. It stressed that while “that may be an appropriate justification for foregoing a meritless objection,” it is “never…an appropriate justification for waiving a meritorious one.” As the dissent pointed out, this refusal to credit a purported strategic justification for not making an objection is unusual—to say the least.
The majority also cited the “numerous, inconsistent, and shifting justifications” counsel provided for his decisions as evidence that he “went into his client’s sentencing woefully unprepared.”
Insufficient Consideration of Addiction
Next, despite noting that “sentences that fall within the Guidelines range are entitled to a presumption of reasonableness,” the majority concluded that Freeman’s sentence was substantively unreasonable.
The court noted that, based on data from the Sourcebook of Federal Sentencing Statistics, the average sentence in cases involving a similar drug weight was 95 months, compared to Freeman’s 210-month sentence. It faulted the district court for failing to consider this disparity.
The majority also held that the district court failed to adequately consider Freeman’s “severe” addiction to hydrocodone. It further emphasized that she sold the pills principally “to sustain her own addiction.” Finally, it stressed that “hydrocodone requires users to take progressively more pills in order to feel its effects and avoid painful withdrawal symptoms. The addiction can quickly take over a person’s life.”
In light of this addiction, a within-guidelines sentence was not substantively reasonable:
In the absence of countervailing evidence such as acts of violence, none of which appears in the record before this Court, Freeman’s severe opioid addiction and her disparate sentence merited a downward variance in this case.
A Curious Footnote
Perhaps the most interesting part of the decision, though, is a footnote at the tail end of the majority opinion. Chief Judge Gregory wrote that “[i]t is worth noting that other parties appear to bear significantly greater responsibility for the opioid crisis,” citing a recent DOJ settlement with the Sackler family. The Sackler family are the owners of Purdue Pharma, one of the drug manufacturers most notorious for pushing doctors to prescribe opioids.
The Sentencing Guidelines do recognize the possibility of a sentence reduction based on an offender’s relatively minor role (U.S.S.G. § 3B1.2). But the suggestion that drug company malfeasance might reduce the culpability of those suffering from addiction is a novel, and—for those concerned about overcriminalization and the collateral consequences of the war on drugs—positive development.
Although the opinion does not mention it, the footnote also hints at a disconnect between sentencing Freeman, who is suffering from addiction, to prison when pharmaceutical executives are able to resolve allegations related to the opioid crisis through monetary settlements with the government.
Conclusion
In sum, this decision reflects a much more compassionate view of those convicted of opioid-related offenses and a skepticism of counsel’s failure to make meritorious objections out of a concern about “rocking the boat” at sentencing. Its greater focus on the reality of addiction and the relative role of lower-level offenders in the opioid crisis will likely be relevant to many defendants facing sentencing in the future.
The case is United States v. Freeman, No. 19-4104 (4th Cir. 2021).
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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