Failing to Ask for Variance can Serve as Ineffective Assistance of Counsel: Thomas

Thomas is a resident of Jamaica and pled guilty to one count of interstate communication with intent to extort, in violation of 18 USC 875 (the substance of the charges were threats that were tied to a lottery scam).  The district court departed upward and sentenced Thomas to nearly six years of imprisonment.

Thomas' Sentencing

At sentencing, law enforcement agents were able to find $300,000 of payments that Thomas received from similar lottery threats.  Ultimately the court sentenced Thomas to 71 months, which was 30 months more than the maximum estimated in the plea agreement.

The Smith Variance

Because Thomas is a deportable person he is not eligible for any home confinement time under 18 USC 3624(c) (because they won’t send him to home confinement in the states only to pick him up and engage in ICE proceedings).  In his Presentence Investigation Report the probation office raised the possibility of a downward departure to compensate for the “increased severity of Thomas’s punishment due to his ineligibility for this and other Bureau of Prisons programs.”  This is commonly referred to as a Smith variance.

“At the sentencing hearing, defense counsel declined to argue in support of this departure because he was bound by the plea agreement not to argue for any departures, but he said he intended to argue later for a downward variance on those same grounds (a Smith variance). At the appropriate time, however, defense counsel did not raise Smith or otherwise make the case for a variance. Later in the hearing, the district judge independently considered granting a variance or departure under Smith. She concluded neither was warranted…”

On appeal, Thomas argued that the district court did not articulate a reasoned basis for declining to impose a departure or a variance under Smith.  Thomas also alleged that his lawyer engaged in ineffective assistance of counsel regarding the Smith variance.

In Smith, The DC Circuit determined that “a downward departure may be appropriate where the defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence.”  Further, “In Thomas’s PSR, the Probation Office noted his ‘status as a deportable alien may warrant a downward departure.’”

The DC Circuit indicated that defense counsel did not “zealously or diligently pursue a Smith variance.”  The court noted that Thomas’ sentencing memorandum did not even echo the need for a sentencing reduction under Smith even though the probation officer brought it up in the PSR.  When asked again, the lawyer failed to bring it up again:

“Defense counsel later submitted a supplemental sentencing memorandum requesting a downward variance based upon Thomas’s susceptibility to “physical beating” in jail, which Thomas attributed to his nationality. The supplemental memorandum again failed to mention  Smith or the Probation Office’s suggestion. Then, at sentencing, the court asked the parties to comment on the possibility of a  Smith departure. Defense counsel, being unable to seek a downward departure, could not opine but stated he would raise  Smith again when the court considered variances. When the time came, however, defense counsel did not raise  Smith, choosing instead to rest on the arguments in his original sentencing memorandum.”

The court indicated that this was not a strategic choice: “counsel stated his intent to raise the issue, but then failed to do so.”  The DC Circuit indicated that there was still a need to consider whether the district court may or may not have been persuaded by had counsel formed a cogent argument. As a result of this, the appellate court remanded the case back to the district court to “allow Thomas to present arguments and evidence supporting a Smith variance.”  No. 19-3015

Jeremy's Notes

Many of you inside may not be able to use a Smith variance because you are United States Citizens and you will be able to receive home confinement near the end of your sentence.  But this case can actually stand for something else, especially those of you who are awaiting sentencing.  The PSR in this case specifically stated that Thomas was possibly appropriate for a Smith Variance.  This PSR SHOULD have been read and reviewed between the accused person and the lawyer. Indeed, the judge asks the accused person if the lawyer went over the PSR with them. If there is something in your PSR that you do not understand, the proper time to ask questions or to ask your lawyer for specific things is BEFORE you get to sentencing.   Be sure to ask your lawyer about things that you don’t understand or things that should be presented.