United States v. Precias K Freeman, No. 19-4104 (filed January 25, 2022): Fourth Circuit Court of Appeals En Banc Finds it Unnecessary to Send Counsel Ineffectiveness Claim to 2255; Relief Granted Based on Existing Record.

This is such an important case I hardly know where to begin.  First of all, it’s refreshing to see the Court’s majority do the right thing and grant Ms. Freeman the relief she so clearly is entitled to. But just as importantly, the Court undertook to correct this miscarriage of justice without shunting her case into the post-conviction relief pipeline first which would have further delayed her case.  So here’s what happened:

Ms. Freeman is an opioid addict.  She was prescribed these noxious drugs as a teenager after she suffered a legitimate injury.  She broke her tailbone when she fell in the shower while pregnant. She got hooked—bad—and she eventually began filling and selling fraudulent prescriptions.  She pleaded guilty to possession with intent to distribute oxycodone in violation of 21 USC §§841(a)(1), 841(b)(1)(C) and received more than 17 years in prison.  The opinion notes she had other state convictions for opioid distribution, but no record of violence or associating with anyone engaged in violence.

She was arrested here when a Walgreen’s pharmacist recognized her and called the police.  She was taken to a hospital where she tested positive for opioids.  She spoke to investigators and told them that “on a good week she gets approximately 21 forged prescriptions filled, and about 7 forged prescriptions on a bad week.”

She pleaded guilty to the charges.  Before she was sentenced, she spoke to a DEA agent.  She told him that, during the relevant time frame, she was filling “one prescription per day, four to five days per week” and occasionally four to five prescriptions in a single day.  Each filled prescription contained 120 10mg hydrocodone pills. She estimated she sold 52,000 pills to her buyer during a two-year time frame.

While awaiting sentencing, she failed a drug test and admitted to taking a Lortab.  Because of that, she was placed on GPS monitoring.  During that time frame, she was evicted from her apartment. She and her children lived in hotels near Shelby, NC, 40 miles from the former home in Spartanburg. She explained to the district court she left because she and her children did not have anywhere else to go.

At sentencing, the probation officer estimated Freeman successfully filled one fake prescription every day for two years.  She was held accountable for 87,600 tablets of hydrocodone which gave her a base offense level of 32.  There was some problem between Freeman and her lawyer at the sentencing hearing, and the court agreed to continue the case to allow her to hire new counsel and to “revisit the PSR.”  So, the probation officer did.  This time, he or she “conservatively estimated” Freeman successfully filled two prescriptions, consisting of 120 10 mg pills, every day for two years.  This quantity of drugs amounted to 175,200 pills and gave her a base level offense level of 34. This was more than twice what she told officers during her proffer.  It’s not at all clear to me why the probation officer decided to light her up after the district court continued her case, but it appears it happened.   In the discovery, the government only provided evidence of fewer than 60 fraudulent prescriptions filled by her during the relevant time frame.

The  probation officer additionally recommended +2 for obstruction of justice based on her move to Shelby, and recommended against a 3 level decrease for acceptance of responsibility based on her admission of criminal conduct.  Freeman was looking at a base offense level of 36.  By the way, when considering whether to plead to federal offenses, make sure you’re having an honest discussion about how the probation officer may affect your sentence. The one in this case appears to have been extremely heavy-handed.  They’re not all like this.

After the delay so Freeman could sort out her counsel issues, Freeman’s new lawyer filed objections to the PSR based on Freeman’s failed drug test, the government’s lack of evidence for calculated drug weight and the obstruction of justice.  On the day of the hearing, though, he waived those objections! Reluctantly, and after talking to her lawyer, she agreed to the waiver.

Then, instead of arguing the objections, plea counsel asked the district court to allow Freeman into the drug court diversion program that would have allowed her treatment instead of prison!  I’m going to stop right here for a moment and reflect on the fact that, at this point, it should have been apparent to anyone with any federal criminal experience that the train had flown completely off the tracks.  The time to get someone into drug court was WAY PAST and any reasonably competent lawyer would have known that.  The day to “ask” for diversionary program is not the day your client is likely to be sentenced to 15+ years in prison.   That just is not how it’s done as any federal practitioner would have told trial counsel if he had asked.

But anyway, the district court predictably denied counsel’s request for drug court and sentenced Freeman to 210 months in prison.  Counsel then filed a “59(e) motion” which isn’t a thing in federal court but is something state practitioners file in South Carolina civil cases.  The court denied that “motion.”

Long story short, trial counsel should have continued with his objection to the drug weights.  As the opinion notes, the increase in Freeman’s drug weight between the two PSR’s, based on substantially the same information, and in contravention of the district court’s instructions to review Freeman’s proffer “strongly suggest that [the PSR] was not proper.”  The PSR also did not account for Freeman’s personal use which would have reduced the amount she was alleged to have distributed and reduced her BOL to 32.  Counsel also should not have waived his objections to the obstruction of justice enhancement which was not applicable under the facts of this case.  And by waiving his objection to the obstruction of justice enhancement, counsel also waived the right for Freeman to receive a downward adjustment for acceptance of responsibility.  The Court notes that had Freeman’s objections been successful (as it strongly suggests they should have been), Freeman would have faced a sentencing guideline range of 97- 121 months instead of 210-240.

In response to this, the government argued counsel may have had a “strategic reason” for waiving the objections!  Are you kidding me?!?  How could it possibly have been a strategic decision to subject your client to an additional 10 years of prison time?  That’s only “strategy” if you’re prosecuting the case, not defending your client. The Court, of course, rejected this argument in short order.  Then the government argued that the Court should defer ruling on trial counsel’s ineffectiveness until a fuller record could be developed by way of a 2255 hearing.  This is where I think this becomes a very important and interesting case because here the Court acknowledges what many of us who practice post-conviction criminal defense know—sometimes ineffectiveness is so patent on the existing record that it does not require additional factual development to prove the point!   We see this all the time!  Let’s give trial counsel an opportunity to explain why he didn’t request a proper jury instruction that would have allowed the jury to consider his client’s defense!  Let’s ask trial counsel why he didn’t call his client’s alibi witnesses!  Oftentimes, a knowledgeable lawyer can simply read a transcript and see where things went wrong, and there cannot be any “strategic reason” for doing stupid things that hurt your client (like waiting until the sentencing hearing to try and get your client into a diversionary program, or filing a state court motion in a federal court).  There’s no question but that Freeman received ineffective assistance of counsel in this matter and it defies logic to insist that her defense counsel could come up with some rationale for why it would be better for his client to spend an extra 10 years in prison.

The dissent here wants to give trial counsel an opportunity to explain his decisions.  Why?  If it’s clear on the record that trial counsel’s “decisions” ended up with his client receiving an additional 10 years in prison that she didn’t deserve, who cares what his “strategy” was?  Whatever it was, it wasn’t reasonable since it affirmatively harmed his client.   So—important case—both for Ms. Freeman but also because it illustrates a very important principle that applies in all cases:  It’s not always necessary to have additional proceedings to allow defense counsel an opportunity to explain his or her poor choices.  Many times that will be necessary, but to reflexively insist on it every time a defendant makes a claim of ineffective assistance of counsel is a waste of resources and affirmatively harms defendants who are entitled to relief.