Appeals & Habeas Corpus

Marcia Shein has been admitted to every Federal Circuit Court of Appeals
and Supreme Court in the United States to practice Appellate Law.

Appeals

Examples of Reversable Errors

The following is a list of some examples of reversible error on Appeal.

• Errors Involving the Constitution;
• Errors Involving Jurisdiction/Venue;
• Errors Involving Time Limitations;
• Errors Associated with the Grand Jury;
• Errors Involving Indictments;
• Errors Associated with Judges;
• Errors Associated with Prosecutors, Police and/or Judges;
• Errors Involving Defendant and/or Defense Attorney;
• Errors Involving Dismissal;
• Errors Involving Guilty Pleas;
• Errors Involving Publicity;
• Errors Involving Continuances;
• Errors Involving Discovery;
• Errors Involving Severance;
• Errors Involving Double Jeopardy;
• Errors Involving Identification;
• Errors Involving Search and Seizure;
• Errors of Sufficiency of the evidence;
• Errors on pre-trial motions; and
• Errors in 404(b), prior crimes evidence and other errors.

Marcia G. Shein began consulting with criminal defense attorneys in 1980 on federal sentencing issues. Her background as a federal probation/parole officer, private therapist, her Masters Degree in Counseling Psychology, and her Juris Doctorate Degree have helped set the goals for providing consultation and representation to defendants and defense attorneys in matters of Federal pre- and post-conviction relief throughout the country. Ms. Shein has served as an adjunct instructor of legal and psychology courses for the Criminal Justice Programs for Broward Community College and Nova University in Florida, Troy State University in Alabama, and Kaplan University in Chicago.

Ms. Shein is a recognized attorney in pre-trial sentencing and post-conviction relief whose articles and personal interviews have been published in numerous state and national law journals. She has provided testimony before the United States Sentencing Commission and has spoken before state and national bar conventions, civic groups, and on television. Ms.Shein is the author of The Sentencing Defense Manual, published by West Group (formely by Clark, Boardman, Callaghan, Ltd.) from 1988 to 1998. Her book served as a criminal defense attorney's guide to effective sentencing advocacy and sentencing resources. It was awarded the Best Legal and Accounting Text for 1988 by the American Association of Publishers.

Ms. Shein is also the editor of a self-help manual for federal prisoners as well as a monthly newsletter. Ms. Shein is a life member of NACDL and is admitted in all Federal Circuit Courts of Appeal , the Supreme Court of Georgia, and the United States Supreme Court. She has also been admitted in the following United States District Courts: Middle, Southern and Northern Districts of Georgia; the Districts of Arizona, Colorado, Nebraska, and Columbia; the Eastern District of Tennessee; Eastern District of Michigan; and the Western, Eastern, Southern and Northern Districts of Texas. Her practice includes pro hac vice appearances throughout the country... Read More

Click here to view a list of Appellate cases represented by Marcia G. Shein

Habeas Corpus

APPELLATE AND 2255 UPDATE

The Federal Criminal Law Center and the Law Office of Marcia G. Shein want to let you know what areas of legal relief are available for 2255 and appellate review. Not every case will be viable, but if your case falls within these areas of possible relief, you may want to have our specialists in appellate and post-conviction law represent your interests.

5th Circuit excludes weight of liquid used to transport cocaine. Defendant was arrested at the airport carrying two bottles containing a thick liquid which had cocaine distilled in it. The 5th Circuit held that the district court should not have considered the weight of the transport liquid. Under the market-oriented approach adopted by Congress, culpability should be based on the amount of usable drug mixture that a defendant brings to the market. Here, the liquid transport medium was to be separated out before distribution. This decision did not conflict with 5th Circuit decisions holding that the weight of toxic liquid by-products from the manufacture of methamphetamine should be considered at sentencing. Both methamphetamine and PCP were singled out for different treatment under the guidelines, and the market-oriented approach was not intended to apply. Moreover, the liquids involved in the methamphetamine cases were precursor chemicals or by-products of the manufacturing process. U.S. v. Palacios-Molina, 7 F.3d 49 (5th Cir. 1993).

7th Circuit excludes waste water from weight of cocaine base. The 7th Circuit held that the district court improperly considered the weight of water left over from the cocaine base manufacturing process, in calculating defendant's base offense level. The decision in Chapman v. U.S., 111 S.Ct. 1919 (1991) does not require the waste water to be included. The waste water did not serve as a dilutant, cutting agent or carrier medium for the cocaine base, and did not facilitate distribution. The liquid was merely a by-product with no use or market value. Under a market-oriented approach, when the mixture is not ingestible and therefore not marketable, there is no reason to base a sentence based on the entire weight of a useless mixture. Judge Ripple concurred to emphasize that the opinion did not address whether the waste water could have been included had the defendant been charged with manufacturing, rather than distributing, crack cocaine. U.S. v. Johnson, 999 F.2d 1192 (7th Cir. 1993).

10th Circuit says Chapman did not overrule cases requiring consideration of weight of unusable by products. Under 10th Circuit cases decided before Chapman v. U.S., 111 S.Ct. 1919 (1991), the weight of unusable waste by-products containing a detectable amount of P2P are to be included for sentencing purposes. Defendant argued that Chapman overruled these cases and adopted a market-oriented approach under which waste by-products should be excluded. The 10th Circuit rejected this argument, reaffirming that so long as a mixture or substance contains a detectable amount of a controlled substance, its entire weight, including waste by-products of the drug manufacturing process, may be properly included in defendant's base offense level. The focus on Chapman's reference to a "market-oriented" approach ignores other language in the opinion stating that Congress intended the penalties for drug trafficking to be based on the weight of drugs in whatever form they were found. United States v. Killion, 7 F.3d 927 (10th Cir. 1993).

11th Circuit excludes weight of discarded by-product in methamphetamine manufacturing case. Under Section 2D1.1(c), the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. In U.S. v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991), the 11th Circuit held that the term "mixture" in Section 2D1.1 does not include unusable mixtures. Here, the 11th Circuit held that under Rolande-Gabriel, unusable and discarded "sludge" from the methamphetamine manufacturing process should not be considered at sentencing. The sludge in question was toxic and unusable. It makes no sense to sentence defendants based on the weight of materials that would never find their way to methamphetamine consumers. U.S. v. Newsome, 998 F.2d 1571 (11th Cir. 1993).

9th Circuit says relevant conduct must show similarity, regularity, and temporal proximity. Defendant argued that amounts of methamphetamine in her prior drug arrests should not have been considered in determining her base offense level. The 9th Circuit agreed, relying on its decision in U.S. v. Hahn, 960 F.2d 903, 907 (9th Cir. 1992), which held that before such prior acts can constitute "relevant conduct" under Section 1B1.3(a)(2), the government must show, in "sufficient proportions," the similarity, regularity and temporal proximity of the prior acts to defendant's conduct here. Since the record did not contain the required findings, the sentence was vacated. U.S. v. Soyland, 3 F.3d 1312 (9th Cir. 1993).

9th Circuit reverses for failure to ask whether defendant wished to speak at sentencing. In U.S. v. Mejia, 953 F.2d 461, 468 (9th Cir. 1991), cert. denied, 112 S.Ct. 1983 (1992), the 9th Circuit held that when the defendant's sentence is as short as it could possibly be under the guidelines, the failure to offer the defendant the opportunity to speak before sentencing may be harmless. Here, although defendant's sentence was at the lowest end of the range, the 9th Circuit was not convinced that the district court used all the discretion it had available. The "possiblity that [defendant] might have said something to prompt the court to impose a different sentence is admittedly remote." Nevertheless, since the court could not foreclose the possibility that the court might have granted a further downward adjustment or departed downward, defendant's sentence was vacated. United States v. Medrano, 5 F.3d 1214 (9th Cir. 1993), vacating earlier opinion at 986 F.2d 299 (9th Cir. 1993).

9th Circuit finds judge's reasons for sentencing at top of range were inadequate. As an armed career criminal, the defendant's guideline range was 262-327 months. The district court imposed 327 months plus 60 months consecutive. Afterward, the district court explained that the sentencing guidelines and the Armed Career Criminal Act reflect Congress' judgment that some people in society cannot adjust and that "there comes a time in a person's criminal career when the person is to be exempted from society under all conditions." The 9th Circuit held that his statement was insufficient to satisfy the requirements of 18 U.S.C. Section 3553(c). Nor was it adequate for the judge to circle the only justification available for a high end sentence on a written form attached to the judgment, which stated that "criminal history and other criminal conduct supported sentence in top range of guidelines." The district court made no statement pertaining to defendant's individual conduct, character, and criminal background. United States v. Wilson, 7 F.3d 828 (9th Cir. 1993).

2255 Habeas Corpus Motions

1st Circuit remands where defense counsel was unaware of notice requirement in Section 851. The district court imposed the mandatory minimum six-year supervised release term prescribed by 21 U.S.C. §841(b)(1)(C) for repeat offenders. This was an increased punishment which required the filing of a notice under §851, which the government failed to file. Defendant did not object below and he did not appeal his sentence. On appeal from the denial of his 28 U.S.C. § 2255 motion, the 1st Circuit remanded for reconsideration. There may have been both cause for, and prejudice from, the procedural default. Defense counsel, apparently unaware of the notice requirement in Section 851, invited the court to apply the enhanced recidivist penalties. Such an oversight could constitute insufficient cause to excuse the procedural default. Since this issue was not considered below, remand was requires. Suveges v. United States, 7 F.3d 6 (1st Cir. 1993).

8th Circuit grants relief from illegal term of supervised relief despite procedural default. In a 2255 motion, defendant argued that his four-year term of supervised release exceeded the maximum authorized by law. The 5th Circuit agreed. Defendant was convicted of violating Section 21 U.S.C. Section 841(d), which is a Class C felony. Unless a statute authorizes a longer term, the authorized supervised release term for a Class C felony is not more than three years. Although defendant had procedurally defaulted this claim, Section 2255 makes relief available if the sentence was in excess of the maximum authorized by law. Relief should be granted to avoid "manifest injustice." United States v. Wilson, 997 F.2d 249 (8th Cir. 1993)... Read More