The Sentencing of Sergeant Patrick Lett

Update: Here's the cert petition (pdf) filed today, which Prof. Berman quotes from here. They'd also welcome amicus briefs.

A must-read article in the New York Times today about Sgt. Patrick Lett and his cocaine sentencing in Alabama. Law Prof Doug Berman of Sentencing Law and Policy, who is now representing Sgt. Lett pro bono, has lots more.

First, about Sgt. Lett:

Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine. It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.

Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...

The judge's hands were tied by the mandatory minimum 5 year penalty. He wanted to give Lett as short a sentence as possible. Read below what happened:

A friend of Letts, a law student who studied under Prof. Berman, was in the courtroom for sentencing. He figured out that the Judge could have gotten around the mandatory minimum by applying the safety valve. He wrote the judge and copied the lawyers after the sentencing and told them.

The next day the Judge applied the safety valve under 18 U.S.C. 3553(f) and reduced Lett's sentence to time served -- 11 days. The Government appealed.

In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele. The decision was frank in its admiration for a fine soldier and mechanical in its application of the law. The appeals court did not discuss whether Judge Steele had been right to apply the “safety valve,” saying “reasonable arguments can be made on both sides.” Instead, the panel said that the law simply did not allow Judge Steele to revise the sentence once he had imposed it.

True, there is a rule of criminal procedure that allows judges to “correct a sentence that resulted from arithmetical, technical or other clear error,” so long as they do it within seven days. Math can be fixed. But since Judge Steele’s mistake was in his understanding of his own power to do justice, the panel said, Sergeant Lett must serve five years.

In other words, the Judge could have sentenced him to time served the day of the sentencing, but not the next day.

Prof. Berman, together with the law firm Jones, Day (also working pro bono) will be filing a petition for writ of cert to the Supreme Court.

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    is anyone else wondering why? (1.00 / 1) (#16)
    by chicago dyke on Tue Feb 12, 2008 at 03:00:30 PM EST
    why he thought selling crack would be the thing to do? you don't just wake up one day after years of service and say, "i think i'll try selling drugs." you do it because you have no other options.

    where was his precious military then? why weren't they helping him meet his obligations? it should go both ways. if 'good' military folks and vets aren't allowed to break the law without us calling down the wrath of god on them for "disgracing' the uniform, then the higherups and military planners need to find a way to do without expensive programs like star wars, and spend more on veteran job training and placement and counseling.

    and this former marine agrees: we only get really drunk and beat people and rape women. we keep our bodies pure from the Great Evil of drugs. just ask my former SSgt, oh wait you can't because he's serving a max sentence for raping his own 4 year old daughter. spare me that crap about how "99%" of service people are angels who never sin. and do a little googling on "the military" and "rape" and "domestic violence" and tell me how heroic some of those people, and the ones in uniform who cover for them, must be.

    Nada (none / 0) (#19)
    by SandyK on Tue Feb 12, 2008 at 03:25:45 PM EST
    You sell because it offer quick cash, with little work.

    Joe Schmoo can make over $6/hr at the McDonalds. But he doesn't want to work for it. But selling drugs is nothing but sitting around with a cell, holding, riding around and collecting cash. He gets his cut, all without much work.

    He's not interested in going to college. He wasn't even interested in completing high school. He was interested in easy and fast cash.

    It took a state and federal drug sting to finally get rid of the trash on my street. And I'm glad they did, because now neighbors and their kids can come out of their homes and exercise their freedom without getting shot or worse.

    Drugs are bad new. Legalizing them won't make the misery go away. It'll just hide it from the same folks who think these suckers are victims. It's an insult to all those who are poor who play by the rules, and rise without the handouts and sympathy, too.


    You sell it.... (none / 0) (#30)
    by kdog on Wed Feb 13, 2008 at 10:10:06 AM EST
    because people wanna buy it.  Same as TV's, a bottle of Jack, or a Glock 9mm.  No law can change that...the will of free people is too strong.

    Don't know about you...but when I'm looking for a job I'm looking for the most compensation possible with the least amount of back-breaking.  I'd have moral qualms about selling crack and Glock 9mm's personally, but that's neither here nor there.

    You excercise your freedom, and I'll excercise mine to choose what I put in my body...how about that?  And you keep your chains off the guys who sell me what I want, ok?

    And don't expect the government to keep your kids off drugs, that's your job.  Besides, the govt. hasn't put a dent in drug distribution with their 50 year drug war.


    It seems to me (none / 0) (#1)
    by Deconstructionist on Tue Feb 12, 2008 at 12:30:53 PM EST
      that the "other clear error" prong of Rule 35 should apply here. § 3553(f) states that the district court SHALL sentence without regard to any mandatory minimum where the defendant meets each prong of the five part test* and if the court did not properly apply the law to undisputed facts that is clear error, is it not?

      One thing that would give me pause though would be whether to go forward with a cert petition or go directly to a § 2255 action alleging ineffective assistance of counsel, denial of due process, equal protection etc. because he can't bring a § 2255 until direct appeal is exhausted. this might though be one of the rare cases where ineffective assistance of counsel can be established in the record on appeal. a strong argument can be made that failing to move for the safety valve for a qualifying client is below any minimal standard of competence and it was clearly prejudicial here.

    * (3553 (f) still says pursuant to the guidelines because it was not amended post -Booker but one could argue that must be read in light of Booker and even if not his guidelines sentence was probably significantly less than 5 years which would still make that much of it clear error)

    On the one hand, you have what appears to be a good, honest guy who after 17 years of a respected military career opts out of the service and ends up getting popped for selling crack. I just want to smack him.

    Then on the other hand, you have a legal system with ridiculous and arcane laws that say "You aren't allowed to fix a sentencing mistake." I just want to smack the lawyer that dreamt that up.

    As someone who has no legal training (none / 0) (#3)
    by dannyinla on Tue Feb 12, 2008 at 12:37:38 PM EST
    I often feel like a boy among giants here when you get into legal talk, but thanks for posting this - it's a fascinating story.

    My question is how the heck was the judge not aware of what he could and could not do.

    Here's a lengthy piece of writing on the judge from Jeff Sessions.


    Your comment's going to get deleted. (none / 0) (#4)
    by sarcastic unnamed one on Tue Feb 12, 2008 at 12:39:59 PM EST
    You have to link correctly.

    To link, with apologies if it's too basic:

    -highlight the URL of the web-page that you want to link to.

    -copy the URL ("edit" then "copy").

    -come back to TL and write something in your "Comment:" box.

    -highlight the word(s) in that comment that you want to be the link.

    -click the "URL" button above the "Comment:" box, it's the button that has
    an icon that looks like links of a chain. That brings up a link box, and your cursor is automatically in it.

    -hold down the "Ctrl" button on your computer's keyboard and then type "v". That copies the url into the link box.

    -click "OK."

    -click the "Preview" button below the "Comments:" box.

    -if the preview looks good - ie., the word(s) you selected to be the link
    are a different color from the rest of the text - click the "Post" button below the "Comments:" box.


    I found the link to the opinion (none / 0) (#5)
    by Deconstructionist on Tue Feb 12, 2008 at 12:47:28 PM EST
      and I must revise one thing I said, it appears that Lett's guideline range for some of the counts of conviction did exceed 5 years at the bottom end of the range (He pleaded guilty to all 7 counts for which he was indicted!

      I still think the argument that § 3553 (f) must be read in light of Booker to allow the judge discretion to go below the guidelines is a good argument but it does definitely complicate the clear error argument some.

    It may be neither here nor there legally, but (none / 0) (#6)
    by Deconstructionist on Tue Feb 12, 2008 at 12:51:07 PM EST
      get a load of what his lawyer at the district court level said to the Times when contacted him. What an arrogant SOB he is,  and way to uphold his duty of loyalty to his client.


    You mean this punk? (none / 0) (#7)
    by sarcastic unnamed one on Tue Feb 12, 2008 at 12:56:41 PM EST
    Sergeant Lett's defense lawyer, who had been paid $10,000, did not appreciate [2nd year law student] Mr. Sinor's intercession, which he called "insulting."

    "If you think five years was a bad job on my part, then you wanted a magician and not a lawyer," the lawyer, Glenn G. Cortello, wrote to Mr. Sinor in an e-mail message. "When you get out of law school and have practiced criminal law for over 20 years, I'll discuss it with you."

    On the phone Monday, Mr. Cortello said Sergeant Lett "got lucky" with his five-year sentence. "They would have been justified in giving him 20 years," Mr. Cortello said.

    That'd be the guy (none / 0) (#8)
    by Deconstructionist on Tue Feb 12, 2008 at 01:00:35 PM EST
      How would you like someone with that attitude representing someone about whom you cared. I hope his local paper runs the story.

    My take on what his "lawyer" said (none / 0) (#9)
    by jerry on Tue Feb 12, 2008 at 01:07:44 PM EST
    Was that the lawyer was doing his best for his client by also laying the groundwork that he (the lawyer) was an incompetent jackass not capable of defending his client.

    See, so it was all good.

    I'd like to know if the safety value is written down on the same page as the law itself.  How could attorney and judge not know about this?


    i read the 11th cir. opinion (none / 0) (#10)
    by Deconstructionist on Tue Feb 12, 2008 at 01:17:49 PM EST
     To clarify, the PSR did note Lett was eligible for safety valve treatment, but apparently neither the probation officer ofr Lett's attorney raised the issue that the safety valve (in addition to giving a defendant a two level downward adjustment in the guidelines offense level which was granted) allows judges to sentence below the mandatory minimum that would otherwise apply.

      The safety valve statute is 18 U.S.C. § 3553 (f). Provisions relating to it also appear in the guidelines at § 5C1.2 and § 2D1.1 (b)(11).

    Again, showing what a disaster his attorney was. (none / 0) (#11)
    by jerry on Tue Feb 12, 2008 at 01:26:28 PM EST
    clear ineffective assistance (none / 0) (#28)
    by txpublicdefender on Tue Feb 12, 2008 at 06:07:28 PM EST
    Any lawyer practicing in federal court who doesn't know to check every time to see if his or her client is eligible for the safety valve should be cited for ineffectiveness and violating his ethical duty to competently represent his client.

    This is a no-brainer.


    No argument there (none / 0) (#12)
    by Deconstructionist on Tue Feb 12, 2008 at 01:34:24 PM EST

    but in Booker the Supreme court overlooked this issue (because it was not before it):

    (...The entire Act [18 U.S.C. § 3553] need not be invalidated, since most of it is perfectly valid. In order not to "invalidat[e] more of the statute than is necessary," Regan v. Time, Inc., 468 U.S. 641, 652, the Court must retain those portions of the Act that are (1) constitutionally valid, ibid., (2) capable of "functioning independently," Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, and (3) consistent with Congress' basic objectives in enacting the statute, Regan, supra, at 653. Application of these criteria demonstrates that only §3553(b)(1), which requires sentencing courts to impose a sentence within the applicable Guidelines range (absent circumstances justifying a departure), and §3742(e), which provides for de novo review on appeal of departures, must be severed and excised. With these two sections severed (and statutory cross-references to the two sections consequently invalidated), the rest of the Act satisfies the Court's constitutional requirement and falls outside the scope of Apprendi v. New Jersey, 530 U.S. 466. ....

      So, Booker seems to say § 3553 (f) is still good law and (f) says a court in a safety valve case must impose the sentence pursuant to the guidelines without regard to any statutory minimum. In Lett's case though the guideline range was ABOVE the statutory minimum.

      The Supreme Court could now conclude that it needs to excise and sever the portions of (f) that direct a court to impose a sentence pursuant to the guidelines, but it did not say that in booker. That's what I meant above about the "clear error" argument not being as strong as I suggested in my first post.

    It also ties into (none / 0) (#13)
    by Deconstructionist on Tue Feb 12, 2008 at 01:55:02 PM EST
      The reason I said I'd give consideration to foregoing cert and moving directly to § 2255 relief. Outcomes in either are uncertain but with a § 2255 action you file in district court where the case originated and where at the least we know the judge is sympathetic to the defendant. Perhaps the district court would be more inclined to find a constitutional error than the Supreme Court would be to reverse the Court of Appeals ruling on the  question of whether the district court had jurisdiction to correct its sentence as clear error. Of course, you can still file § 2255 after cert if you lose  but you can't do the opposite if you  let the cert deadline pass direct review is over.

      Doug Berman is both a good scholar and and a good lawyer so I'm sure he is looking at all the angles.

    5 years isn't long enough (none / 0) (#14)
    by SandyK on Tue Feb 12, 2008 at 02:42:40 PM EST
    To not only disgrace the law, but his uniform.

    This is where the Left seriously is at odds with the majority. The majority are in favor of drug laws (and this is SELLING COCAINE). The majority in uniform will agree he'll need punishment due to him violating not only the laws of the state, military laws of conduct.

    Even if he won the Congressional Medal of Honor, he is not above the law.

    As a former Marine, I will state it again, he's a disgrace. Why? Because 99.9% of those in the uniform do not engage in such activity, and will not engage in such activity, as they obey the laws of the state and the Uniform Code of Military Justice.

    He was not a member of the military (none / 0) (#15)
    by sarcastic unnamed one on Tue Feb 12, 2008 at 02:53:30 PM EST
    when he sold the crack.

    Then... (none / 0) (#17)
    by SandyK on Tue Feb 12, 2008 at 03:19:09 PM EST
    don't exploit his military career as an excuse.

    He was a dealer, and most Americans will not be lenient to those who peddle crap to kids. Pure and simple.

    Bad choice for a victim. Worse choice for sympathy, even among Democrats.


    You must have mixed me up with (none / 0) (#20)
    by sarcastic unnamed one on Tue Feb 12, 2008 at 03:38:01 PM EST
    someone else who did exploit his military career as an excuse.

    Though, truth be told, I don't think I see anyone here doing that, so I have no idea where you're coming from...

    btw, do you have some source that says he was selling to kids? Or are you just mixed up again?


    Don't try that tactic (none / 0) (#21)
    by SandyK on Tue Feb 12, 2008 at 03:46:16 PM EST
    it doesn't work.

    Is that beyond a kid's ability these days to read? The article clearly mentioned his 17 years in service. It clearly mentioned a JAG judge.

    So don't try to pussyfoot around now, claiming, "innocence."

    Any junkie sets foot on my property to commit a crime will be shot. I like 10 gauge shotguns with magnum loads. This is the exact same sentiment of the Democrat campaigner on the corner (a military retiree who also served in Vietnam). It knows no party or idealogical lines. Drugs are bad news, and those who engage on the rights of others to live without being shot or worse, there's a steep price to pay -- the sucker won't be worried about going to jail, he'll be worried if he had funeral coverage.

    I hope I've very clear, that crime DOESN'T pay.


    It is clear that you are unfit (none / 0) (#22)
    by sarcastic unnamed one on Tue Feb 12, 2008 at 03:52:13 PM EST
    for reasoned discourse. Carry on.

    The law needs no help.... (none / 0) (#31)
    by kdog on Wed Feb 13, 2008 at 10:16:29 AM EST
    disgracing itself.  

    I have friends in the Libertarian right who would disagree with you regarding drug laws.  People of all ideologies have the ability to recognize failed policy when they see it....those not consumed by fear at least.

    Disgrace is able-bodied adults going on public assistance....this guy conducted business to feed his family.  Unless you can prove he sold to kids, in which case I'd support some punishment, he's just another business man to me.  And certianly not in need of chains and a cage.


    There is a difference (none / 0) (#18)
    by Deconstructionist on Tue Feb 12, 2008 at 03:20:26 PM EST
     between saying someone should be "above the law" and believing that the law should allow for consideration of all circumstances in determining just punishment in a particular case of of a violation of the law.

      When I see posts at this site that term it an "outrage" that a prominent lawyer has been indicted for allegedly laundering drug money and the only proffered reason for "outrage" is his status, I agree with the characterization of such a post as as suggesting certain people should be "above the law." On the other hand, when a post such as this merely argues that the mandatory minimum applicable in a case such as this punishes a person too severely for his crime that is not saying that person should be "above the law," it is only expressing disagreement with a particular law.


    Can't have retroactive immunity (none / 0) (#23)
    by rilkefan on Tue Feb 12, 2008 at 03:58:13 PM EST
    for druggers.

    Is there some link somewhere (none / 0) (#27)
    by Deconstructionist on Tue Feb 12, 2008 at 04:28:49 PM EST
      directing angry wannabe  vigilantes here?

    Link to Prof. Berman's Cert Petition (none / 0) (#29)
    by syinco on Tue Feb 12, 2008 at 07:59:22 PM EST