It is one of the basic rules of criminal defense – know the “worth” of your case and know it early. The worth of a case is a complex, variable and subjective calculation – encompassing, among other things, the statutory and guideline sentencing exposure, the case’s trial prospects, the plea bargaining practices of the prosecutor’s office and the prosecutor individually, the sentencing history of the assigned judge, and the defendant’s personal and offense-related circumstances. A key issue, as I have said in a surprisingly large percentage of my entries in this nascent blog, is understanding the impact of the client’s prior criminal history. Overestimating that history can be as devastating to the defendant’s plea-bargaining advantage as under-estimating it, as illustrated in the case of United States v. Norvell, issued on September 3, 2012.

Error in Plea Agreement

Norvell was arrested for drug distribution and reckless endangerment – the latter based on his striking a police car in an effort to escape apprehension. His first plea offer required him to accept the government’s mistaken conclusion that he was a career offender, triggering a three-strikes guideline of 151-188 months. His lawyer did not realize the mistake until after the plea offer had been rejected. (If the plea had been properly calculated, he would have faced 70-108 months). A later plea offer was based on the government’s erroneous assumption that Norvell’s criminal history category was VI rather than III. When this offer was also rejected, the government superseded with charges involving higher drug quantities. Norvell pled guilty to a third plea offer, and was sentenced to 188 months, the top end of the sentencing range determined by the court.

On appeal, Norvell argued he had received ineffective assistance in plea negotiations, specifically, when his lawyer got his criminal history score wrong, thus discouraging him from accepting the first plea offer that would have produced a much lower guideline range. The Eighth Circuit rejected the challenge, holding that “defense counsel’s inaccurate criminal history calculation does not provide a basis to withdraw a guilty plea.” In addition, Norvell’s lawyer’s performance did not run afoul of the Supreme Court’s decision in Lafler v. Cooper (where a lawyer had improperly advised his client to reject a plea offer), since he had advised Norvell to accept the first plea offer, albeit while laboring under an inaccurate belief as to its sentencing consequences.

The guideline one faces at sentencing has a powerful framing effect, however, that is frustrated by inaccurate understanding and advice about sentencing exposure. Judge Calabresi’s comments on anchoring in his concurring opinion in United States v. Ingram, 721 F.3d 35 (2d Cir. 2013), apply with full force both to the discretion of the prosecutor as the sentencing court:

The so-called “anchoring effects” long described by cognitive scientists and behavioral economists, see Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Sci. 1124 (1974), show why the starting, guidelines-departure point matters, even when courts know they are not bound to that point. When people are given an initial numerical reference, even one they know is random, they tend (perhaps unwittingly) to “anchor” their subsequent judgments—as to someone’s age, a house’s worth, how many cans of soup to buy, or even what sentence a defendant deserves—to the initial number given. Because anchoring effects influence our judgments, we cannot be confident that judges who begin at criminal category VI and thence depart to whatever below-guidelines sentence they think appropriate would end up reaching the same “appropriate” sentence they would have reached had they, instead, started from the category V guideline range and departed from there.

Ambiguity in Plea Colloquy

Norvell also challenged on appeal the district court’s denial of his motion to withdraw his plea to the third plea offer based on his alleged misunderstanding that he could participate in a pre-sentence rehabilitation program called Teen Challenge that could have led to a shorter sentence. The Eighth Circuit affirmed, finding that “[w]hile the plea record may show a gap in the explanation of the sentencing process as it relates to Teen Challenge,” the district court had determined that “Norvell was not guaranteed an opportunity to attend Teen Challenge as a part of, or in return for accepting, the plea agreement.”

In a strong dissent, Judge Bright found that the plea colloquy “did nothing to disabuse Norvell of the notion that Teen Challenge was part and parcel of his guilty plea.” He concludes:

Guilty pleas play a very important role in our criminal justice system. Unfortunately, the process by which district courts approve guilty pleas is often rote. Plea bargains are sometimes fair, and maybe sometimes not so fair. Nonetheless, all the participants – lawyers as well as judges – must bear in mind that the purpose of a hearing on a guilty plea is to ensure the defendant knows what he is agreeing to. The Rule 11 colloquy is not merely a series of questions to be answered in the affirmative. It is designed to ensure knowing, intelligent, and voluntary pleas. Extreme care must be taken to make sure that defendants have no misunderstandings about the effect of a guilty plea. This plea record shows a gap in the explanation of the sentence as it related to Teen Challenge. In my view the plea of guilty should be set aside and the case remanded for further proceedings.