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Appointment of New Counsel and ACCA: Last Week, the Sixth Circuit Gave Us Things to Mull

In United States v. DeBruler, No. 18-1768 (6th Cir. Sept. 27, 2019) (unpublished), the court dealt with a 6th Amendment claim. The defendant, charged with cocaine distribution and conspiracy, and represented by CJA counsel, moved before trial for the appointment of new counsel. A magistrate judge conducted a hearing on the motion, but the defendant did not appear. Counsel indicated that he did not believe that there had been a breakdown in his relationship with the defendant and the magistrate judge ordered him to monitor the situation. The issue was not renewed.

On appeal, the defendant argued that she was deprived of her right to counsel as guaranteed by the Sixth Amendment. The court held that the magistrate’s inquiry regarding problems with counsel was inadequate. The court expected the magistrate to make greater efforts to allow the defendant to address the court on the claim, by telephone, if necessary. The court noted that problems with conducting proceedings at a distant location (in this case, in Marquette, some 425 miles from the defendant’s residence) should not interfere with adequate inquiries. The court went on, however, to find that the district court did not abuse its discretion in failing to order the appointment of new counsel. The court’s reasoning is unclear, but the court identified the fact that the defendant’s initial complaint did not identify a specific problem. This factor appears to be important to the court.


In United States v. Penn, Nos. 17-4119/18-3010 (6th Cir. Sept. 27, 2019) (unpublished), the defendant was convicted of being a felon in possession of a firearm, and was sentenced as an armed career criminal. The defendant completed his prison term and began supervised release. The Supreme Court then decided United States v. Johnson, and found the ACCA residual clause unconstitutionally vague.

The defendant then challenged his ACCA status (in a 2255), arguing that one of his convictions was not a proper ACCA predicate. While this challenge was pending, however, the defendant pleaded guilty to a supervised-release violation based on a series of bank robberies. The defendant’s maximum imprisonment for the offense was enhanced to five years based on his ACCA status. See 18 USC 3583(e)(3). His supervised release was violated, and he was sentenced to a five-year prison term, to be served consecutively to his sentence for the bank robberies.

The district court denied relief regarding the Johnson violation because it had revoked the defendant’s supervised release, and therefore the defendant’s claim was moot. The court of appeals disagreed, finding that the prospect of a shortened prison term defeated the finding of mootness. The government claimed that the Johnson claim was moot because the “initial sentence” no longer existed. The court flatly rejected this claim. The court found that a supervised-release sentence was part of the original sentence.

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