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Plea agreement bars defendant from appealing sentence

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A defendant who agreed to waive his right to appeal his sentence after pleading guilty to a drug offense was unable to convince the 7th Circuit Court of Appeals that he should be allowed to pursue his ineffective assistance of counsel claim.

Garrett Smith pleaded guilty to possessing with the intent to distribute 500 grams or more of cocaine. As part of his plea agreement – which he signed and told the judge he understood – Smith waived his right to appeal his sentence on any ground, unless the appeal dealt with ineffective assistance of counsel relating to the waiver or its negotiation.

At the sentencing hearing, Smith objected to the presentence report’s finding that he qualifies as a career offender because of a prior drug conviction and state court conviction of reckless homicide. The judge asked for both sides to address Smith’s objection and reset the sentencing hearing for two weeks later. That’s when the judge sentenced Smith to 168 months in light of his cooperation, which was lower than the advisory sentencing range based on Smith’s status as a career offender.

Smith now appeals his sentence on the basis that he is not a career offender. He argued the conviction for reckless homicide doesn’t qualify as a crime of violence for purposes of the career offender guideline, so he’s entitled to a shorter sentence.

“Smith instead urges us to recognize a new exception for the ‘patent’ ineffectiveness of counsel at sentencing. In his view, it should have been obvious to Smith’s counsel below that reckless homicide does not qualify as a crime of violence, and given the significant impact of the career offender determination of Smith’s sentencing range, his counsel was not merely ineffective, but patently so, in neglecting to challenge it. On that basis, he urges us not to enforce the waiver,” Judge Ilana Rovner wrote.

“We can find no support in the language of the plea agreement or in our cases for such an exception.”

No matter how clear a sentencing error the defendant believes the District Court may have committed or however obvious an error he believe his counsel committed in not objecting to the court’s sentencing decision, when the defendant has knowingly and voluntarily waived his right to appeal such errors, the obviousness of the error does not support overlooking the waiver, the 7th Circuit ruled in United States of America v. Garrett Davarrass Smith, 12-3350.
 

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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