In United States v. Lilliard, --- F.4th ---, No. 18-30106 (9th Cir. 2022), the Court affirmed the district court in part, vacated a sentence imposed for the violation of supervised release, and remanded for resentencing on the supervised release violation.
On appeal, "Lillard urges that the seizure of his inmate funds violated his Sixth Amendment right to counsel of choice and his Fifth Amendment due process right. He also contends that the district court’s imposition of an undisputedly illegal sentence for his supervised release violation is reversible error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We conclude that the government’s seizure of Lillard’s inmate funds did not violate his right to either counsel of choice or due process. We also conclude that the district court’s imposition of an illegally excessive sentence for Lillard’s supervised release violation was plain error that requires vacatur of that sentence and remand for resentencing."
On the first issue, the question was "whether the government violates a defendant’s Sixth Amendment right to counsel of choice when it seizes untainted funds pursuant to a valid restitution order and judgment from a prior case."
The Court held it did not. "In sum, because the existing restitution order and § 3613(c) lien gave the government a substantial property interest in the funds in Lillard’s inmate account, the government’s seizure of those funds to satisfy Lillard’s restitution obligation did not violate Lillard’s Sixth Amendment right to counsel of choice."
As to the illegal sentence, the district court imposed a 36-month term for the supervised release violation, even though the statutory maximum was 24 months.
"The government concedes that the imposition of an illegal sentence was an error that was plain. But the government contends that the illegal sentence did not affect Lillard’s substantial rights because his 36-month illegal sentence is shorter than and concurrent with his 196-month valid sentence in the conspiracy case."
The Court disagreed. "We join the First Circuit in holding that an illegally excessive sentence violates a defendant’s substantial rights even if it runs concurrent with an equal or longer, valid sentence." Further, "the imposition of an illegally excessive sentence affects the fairness, integrity, or public reputation of judicial proceedings. As we have recognized in cases where an illegal sentence increases a defendant’s period of incarceration, 'it is a miscarriage of justice to give a person an illegal sentence.'"
