Fourth Circuit Disappoints… Yet Again

Remember when it looked like the Fourth Circuit was on the brink of a significant change? When, after Obama got his nominees on the court, it would go from being super conservative to progressive? Well, that day has not yet come.
The court today issued a major opinion that is heartbreaking for a class of federal inmates called “career offenders.” These are people who had at least two prior convictions (either violent or a drug felony) before they had the almost random misfortune of being charged and convicted by the feds. These people often receive cruel sentences in the range of about 15 to 25 years.
Well, it turns out that, for decades, the courts have been counting as prior convictions certain offenses that should not have counted. The courts have allowed the Government to use these predicates to seek long career offender sentences – over the constant objections of defendants. New rulings, however, confirm that the defendants were correct all along, and the convictions were not qualifying predicate offenses. Hundreds of individuals were wrongly sentenced.
So what happens to someone who was sentenced as a career offender but his predicate offenses are no longer valid prior convictions? That was the question before the Fourth Circuit in United States v. Foote. Foote, the defendant, had been sentenced to 262 months in federal prison for dealing crack, based, in part, on his prior convictions. It turns out, however, that one of the convictions was wrongly counted as a predicate – as the courts later determined that it does not belong to a class of offenses specified under the career offender provision. If the sentencing court had properly not counted this conviction, Foote would not have been a career offender and his sentence probably would have been about nine years shorter.
Rather than try to fix Foote’s sentence, the Fourth Circuit denied his claim and affirmed his sentence of 262 months. They said that this sentencing error did not amount to a “miscarriage of justice,” in large part because Foote was not actually innocent. The court said it issued its ruling with “frustration” – but did nothing to remedy the injustice.
This is a deeply disappointing decision for Foote and hundreds of other federal inmates who are in exactly the same position (including two clients of this Firm). These people will spend an additional ten or so years of their lives behind bars because of systematic judicial error. Most of them are poor and have no voice in our political process. They are invisible men. The court had a chance to help these people, but instead decided to keep them locked up. It is unconscionable.
I wonder if Mr. Foote, and his family, would agree that this is not a miscarriage of justice.