Fifth Circuit Reconsiders Drug Appeal, Carries Government Dismissal Motion With the Case
NEW ORLEANS - The U.S. Court of Appeals for the Fifth Circuit on November 7 released a published order in the drug case of Jerad M. Barrett: a panel that had previously granted the government's motion to dismiss Barrett's appeal, after he appealed despite waiving his appellate rights in a plea agreement, has now granted his unopposed motion for reconsideration and ordered that the government's motion to dismiss be carried with the case for consideration by a merits panel.
The order, filed October 28, was issued per curiam by a panel of Circuit Judges Graves, Ho and Douglas. Judge James C. Ho filed a dissent: he agreed the appeal should be dismissed, arguing Barrett's case does not meet the high bar of the miscarriage-of-justice exception recognized by the Supreme Court in Hunter v. United States, and that carrying the motion with the case improperly delays the decision.
The case began in the Eastern District of Louisiana. Barrett entered a plea agreement under which the government superseded the original indictment and removed references to methamphetamine that carried severe maximum sentences, including up to life imprisonment; Barrett pleaded guilty to four drug offenses carrying statutory maximums of 20 years, and agreed not to appeal unless he was sentenced in excess of the statutory maximum or wished to raise ineffective-assistance claims.
At sentencing, the district court adopted the presentence report prepared by U.S. Probation, which considered the methamphetamine in its offense-level calculation and included a leadership enhancement based on Barrett's allegedly extensive drug activity. Those considerations raised the guideline range from 46 to 57 months to 135 to 168 months, and the court imposed a within-guidelines sentence of 135 months, about 11 years.
On appeal, Barrett faulted the district court on three grounds: considering methamphetamine-related conduct that had been dropped as part of the plea negotiations; relying on unreliable information and misinterpreting the Sentencing Guidelines in imposing the leadership enhancement; and relying on unsupported assumptions in denying a downward variance. He argued that enforcing his appeal waiver in the face of those errors would result in a miscarriage of justice.
The dissent said the errors contemplated by Hunter are the obvious and egregious kind, such as a sentence exceeding the statutory maximum, a sentence based on a constitutionally impermissible factor such as race, or a sentence imposed without any hearing at all. Errors in calculating and applying the Guidelines, it said, are the unfortunate but inevitable mistakes of the complex affair of sentencing and do not constitute a miscarriage of justice. Judge Ho would have granted the government's motion to dismiss now rather than carry it with the case.
With reconsideration granted and the dismissal motion carried with the case, Barrett's appeal will now be considered by a merits panel together with the government's motion. Further proceedings remain pending before the court.
(Source: U.S. Court of Appeals for the Fifth Circuit)
Source: U.S. Court of Appeals for the Fifth Circuit
Published by GSM · USA (original Chinese edition)
Photo: 图：位于新奥尔良的美国联邦第五巡回上诉法院约翰·迈纳·威斯登大楼。图片来源：美国国会图书馆／Wikimedia Commons，公共领域。 / Photo: The John Minor Wisdom U.S. Court of Appeals Building in New Orleans, home of the Fifth Circuit. Photo: Library of Congress via Wikimedia Commons, public domain.