No cure for a mistaken sentence?
Ezell Gilbert of Tampa, Fla., had a brief span of freedom after serving more than 14 years of a 24-year-plus prison term that the federal courts now agree was too long — by maybe as much as eight to 13 years. But he is back in prison now, after an emotionally divided federal appeals court ruled that he had to serve all of the term because he was not entitled to a remedy for the mistake. At the time he was released temporarily last year, he may have served all of the time he would have faced, had it not been for the mistake. Gilbert’s public defender lawyers have taken the issue on to the Supreme Court, and the Justices are now due to consider it at their private Conference January 6.
If the Court takes on the controversy, over the Justice Department’s objection, it could lead to a major decision on the rights of prison inmates to use a 1948 law that Congress passed as a substitute for regular habeas challenges to a conviction or sentence, after the conviction had become final. The case also has constitutional overtones. The outcome could affect tens of thousands of other federal prison inmates who, according to the appeals court majority in this case, would line up at courthouse doors to challenge sentences that had turned out — after the fact — to be mistaken. The decision thus has the potential, if granted review, of becoming one of the Court’s most significant rulings on criminal sentencing.
In the Eleventh Circuit Court, its divided (8-3) ruling stirred judges on the opposing sides to sometimes harsh rhetoric. The majority did what it could to show that Ezell Gilbert was far from a sympathetic figure deserving any breaks, since he had lived a life of crime and even had the insensitivity to take his five-year-old daughter, Keidra, along in his car when he drove to a high-crime neighborhood of Tampa to deal drugs to addicts. In dissent, three Circuit judges spoke alarmingly of the death of the Great Writ of habeas corpus, the self-imposed impotence of the court, and the grave threat to the Constitution that they said the majority had unnecessarily raised by its ruling. The Circuit Court produced six separate opinions, running to a total of 105 pages.
The petition before the Court, in Gilbert v. U.S. (docket 11-6053), can be found here. The Justice Department’s opposition brief is here, and Gilbert’s reply brief is here. The decision denying any relief to Gilbert, by the Eleventh Circuit, is here. An earlier decison in Gilbert’s favor, by a three-judge Eleventh Circuit panel, is here. The panel decision was wiped out when the full court reconsidered the case.
The case involves the interplay of three provisions in federal habeas law — the basic law dating back to 1789, which allows those held in detention or custody to challenge the legality of that confinement, a 1948 law that Congress passed to provide a substitute for habeas — but supposedly with the same rights — in order to ease backlogs in some federal habeas courts, and a 1996 law that cut off the right of those seeking federal habeas to do so multiple times.
Because the Eleventh Circuit decision at issue appears to cut off any avenue for an individual who was mistakenly sentenced to take advantage of a later Supreme Court decision that clearly favors the inmate’s rights, the case has lurking in the background a claim that such a complete denial of relief in that situation would violate the clause in the Constitution that bars the suspension of the habeas right.
While Gilbert’s lawyers contend that the federal appeals courts have issued conflicting rulings on their capacity to correct a mistake like the one that has now been acknowledged in Gilbert’s case, the Justice Department in opposing Supreme Court review disputed the claim of a serious conflict. It also argued that Gilbert has no claim because, even if the sentence he got was mistaken, his sentence was not subject to later challenge because — though too long under Supreme Court precedent that would now apply — it was valid because it was still within the maximum term that Congress would have allowed in this case (life in prison).
Gilbert, now 41, who has a criminal record that goes back to his late teen years, was observed by Tampa police on a stakeout, dealing drugs in a high-crime neighborhood in Tampa in October 1995. He was arrested after two customers apparently bought crack from him in the front seat of the car Gilbert was driving, while his daughter was in the back seat. He ultimately pleaded guilty to trafficking in crack cocaine and marijuana.
The crimes ordinarily would have meant that Gilbert could be sentenced to between 151 and 188 months, but prosecutors sought to have him sentenced as a “career offender” under federal Sentencing Guidelines, because he had two prior felony convictions for drugs or violent crimes. In his case, the prior crimes were a 1990 state conviction for distributing cocaine and a 1994 state conviction for carrying a concealed weapon.
Under precedent in the Eleventh Circuit, carrying a concealed weapon was considered a crime of violence under the Guidelines. As a result, Gilbert faced a sentencing of 292 to 365 months in prison. The District Court judge, feeling bound by Guidelines that were mandatory at the time (they have since been made advisory only, under Supreme Court precedent), gave Gilbert a sentence of 292 months in prison, even as the judge said he thought that was too high.
At his sentencing, Gilbert had argued that carrying a concealed weapon was not a crime of violence. Ultimately, that view proved right, when the Supreme Court in a 2008 ruling narrowed the scope of the definition of “crime of violence” under federal law — a decision that also applied to Guidelines treatment of career offenders. That 2008 decision, in the case of Begay v. United States, ultimately led the Eleventh Circuit to concede that Gilbert’s conviction on the weapons charge was not a violent crime. He thus did not qualify as a career offender.
But, even though Gilbert had tried at each stage of his case to contest the treatment of the weapons charge as a violent offense, he ultimately was found by the Eleventh Circuit to have raised his claim ultimately in a procedurally flawed way. He was barred from raising it anew, the Circuit Court majority ruled, because he had tried to raise it earlier — before the Begay decision — and he could not raise it anew even after the Begay ruling. The 1948 law’s provision allowing federal inmates sometimes to challenge their sentences after they had become final was not available to Gilbert, the Circuit Court concluded, because it simply did not apply to the sentencing context for an individual whose actual sentence was below the maximum set by Congress.
In asking the Supreme Court to take on the case, Gilbert’s lawyers said that his long pursued claim that he was not a career offender has now been vindicated by the Supreme Court itself, he is entitled to relief from the prospect of losing “an extra decade of his liberty.”
Within the Eleventh Circuit, the majority said it would assume that Gilbert’s sentence was longer than he would have gotten without the career offender designation based on the concealed weapons charge, but it went to considerable lengths to make the point that he actually might have been sentenced for an even longer time if the case had gone back to the District Court for resentencing. The dissenting judges, though, calculated that he definitely would have been sentenced to between eight and 13 years less prison time if not for the mistake about the career offender status.
The original three-judge panel of the Circuit Court actually ordered Gilbert released, and he was set free in July 2010. He was ordered back to prison with the en banc Circuit Court ruling in May of this year.
Recommended Citation: Lyle Denniston, No cure for a mistaken sentence?, SCOTUSblog (Dec. 29, 2011, 12:49 AM), http://www.scotusblog.com/2011/12/no-cure-for-a-mistaken-sentence/