A remarkable concurring opinion by Circuit Judge Kevin C. Newson for The United States Court of Appeals for the Eleventh Circuit was just published in United States v. Curtin, No. 22-10509 (11th Cir. Aug. 28, 2023). Judge Newson authored the majority opinion, which affirmed a defendant’s five-year conviction and the above sentencing Guideline range for threatening a federal magistrate judge’s life.
The Impact of Misclassifying Substantive vs. Procedural Error
In 2022, after receiving a five-year sentence, the defendant, Mr. Curtin, challenged his sentence, claiming that the district court relied on an impermissible factor (the religious terminology in a YouTube video clip Curtin included in a court filing). The district court characterized Curtin’s appeal as an allegation of a “substantive error” rather than a “procedural error.”
The misclassification of substantive versus procedural error matters because the rules and standards for considering sentencing challenges are different. For an alleged substantive error, the defendant bears the burden of proving the error was not harmless (i.e., it did “substantially affect” his sentence), while for an alleged procedural error, the Government bears the burden of proving the error did not affect the sentence.
A Call for Clarity in Federal Sentencing Precedent: Implications for Defense Lawyers and Clients
Importantly, Judge Newson also authored a lengthier concurring opinion that speaks specifically to federal defense lawyers and our clients. In the concurrence, Judge Newsom expressed “that our sentencing precedent is a crazy quilt” and explained “[h]ad Curtin’s impermissible-factor challenge been classified instead as an allegation of procedural error—as I think it should have been, frankly—the burden would have shifted, and it’s at least possible that the result would have flipped.”
Furthermore, Judge Newsom declared that “our precedent is both embarrassingly inconsistent, and to the extent that it can be deemed to provide an answer, wrong.”
Therefore, if you feel like your or a loved one’s sentence was unjust, please reach out to Scott H. Palmer, P.C.Our Dallas team can evaluate the merits of a potential section 2255 motion to challenge the sentence.
Call (214) 891-3382 or contact us online today.