Sentencing Counsel Must Make Potentially Winning Arguments to Court to be Effective (also Don’t Agree to Represent a Federal Client Someone Unless You Know Federal Law) US v. Precias Freeman, Case No. 19-4104 (4th Cir. 2021)

You really don’t see opinions like this very often, but it’s encouraging to see the Court step in and correct what was clearly a miscarriage of justice.  Ms. Freeman broke her tailbone as a teenager and has been addicted to opioids ever since.  She was sentenced in 2017 to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone.  The Court ordered appellate counsel to brief two issues—whether this sentence was substantively unreasonable, and whether she received ineffective assistance of counsel, based on the review of the record (usually ineffectiveness claims cannot be raised on direct appeal, so this is a really surprising ask). 

Long story short, Ms. Freeman spent decades obtaining illegal opioids to feed her raging addiction.  In its footnote 9, the Court pointedly notes that “other parties bear significantly greater responsibility for the opioid crisis” and notes the Justice Department’s announced global resolution of criminal and civil investigations with Purdue Pharma and the Sackler Family.  Indeed.  Ms. Freeman was never violent nor did she associate with anyone violent.  But she sold pills, below market value, to the same woman.  Ms. Freeman never profited from her crimes.  Once arrested Ms. Freeman did what many criminal defendants do—she proffered with the government.  In other words, she confessed her crimes and told the government approximately how many drugs she improperly obtained and sold.  Shortly after this, as she was waiting for sentencing, she was evicted from her home.  She also failed a drug test.  She lived in hotels in Shelby, North Carolina, her hometown.  Ms. Freeman has 4 children and was pregnant.  They needed a roof over their heads.  Ms. Freeman did not miss court. 

For purposes of sentencing, the probation department used Ms. Freeman’s proffered statements to conclude that she was responsible for obtaining with intent to distribute 87, 600 tablets of hydrocodone, or the drug equivalent of 5,869.2 kilograms of marijuana. This provided her with a base offense level of 32.  At the sentencing hearing, Ms. Freeman and her then-lawyer disagreed about how to proceed with her case.  The judge allowed her to hire another lawyer to represent her.  During the sentencing delay, probation recalculated her drugs.  It concluded that she was now responsible for 175,200 pills, or 11,738.4 kilograms of marijuana.  She was then assigned a base offense level of 34.  She was also given +2 enhancement for “obstruction of justice” because she moved to Shelby, and denied her a -3 level reduction based on accepting responsibility.  The probation office obviously had it out for Ms. Freeman.  Her offense level then was a 36 at the time of sentencing. 

Prior to this second sentencing date, counsel filed objections to the PSR report based on the failed drug test, the government’s lack of evidence for its calculated drug weight, and the facts relating to the obstruction of justice count.  On the day of sentencing, though, COUNSEL WAIVED THOSE OBJECTIONS—much to Ms. Freeman’s surprise.  Counsel concluded those objections were “minimal” and wouldn’t impact her sentence.  Wrong.  Instead, counsel argued to the Court that Ms. Freeman should be allowed to participate in the Bridge Program—essentially drug court, that needed to be explored WAY before this sentencing hearing.  Obviously the judge rejected that request—because it was completely improper given the circumstances—and sentenced Ms. Freeman to 210 months in prison.  Counsel then filed a civil motion asking the Court to reconsider.  Since civil procedure does not apply to criminal court (duh!), the Court denied the motion. 

The Court found trial counsel woefully ineffective.  Had counsel persisted in his objection to the drug weight, the Court concluded that based on the docket and court transcript, Ms. Freeman still would have had a lower Guidelines range (168-210 months and not 210-262).  Counsel also waived the obstruction of justice objection and the -3 denial of responsibility.  Had counsel made those arguments, Ms. Freeman could have received a total offense level -5 than the one she ultimately received.  The Court found that counsel likely would have prevailed had he made those arguments. Had counsel not been “woefully unprepared” *14, Ms. Freeman’s guideline range would have been 97-121 months.  

The Court also held that the 210 month sentence was substantively unreasonable.  The median sentence for defendants convicted of opioid-related crimes who trafficked this amount of drugs was 75 months.  The average sentence was 95 months.  Appellate counsel also provided evidence to show that Freeman’s sentence was disparate within both the Fourth Circuit and the District of South Carolina.  The Court also found that the 3553(a) factors militated in favor of a lesser sentence since Ms. Freeman was horribly addicted.  She used the drugs to feed her own addition.  The Court found the trial court failed to seriously consider Ms. Freeman’s addiction as mitigating (Wow!).  Also, her crime did not have any identifiable victims. 

This is simply an extraordinary opinion, in my opinion.  Finally, the courts are recognizing that drug addiction does not mean a person’s life is without value and is disposable.  Ms. Freeman received an unconscionable sentence due to her addiction, not because of her criminality.  The Court’s stepping into the case now, instead of waiting for a federal post-conviction action, was such a humane act it almost makes me weep.  Best of luck to Ms. Freeman in her resentencing.