Sometimes You Can Speak For Yourself, 6th Circuit Says – Update for October 16, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CATCH-22

When Derek Riley pled guilty in 2016 to conspiracy to distribute controlled substances, his Guidelines Criminal History Category was III yielded an advisory sentencing range of 135 to 168 months. The district court sentenced him to 160 months.

In 2023, Amendment 821 to the Sentencing Guidelines retroactively lowered some criminal history points, including Derek’s. His new Guideline sentencing range was 121 to 151 months. A public defender representing him in the resentencing stipulated with the government to a 144-month sentence, which the court imposed.

Derek was not happy with the new sentence and filed a document he wrote himself called a “Motion for Reconsideration.” In it, he stated that his attorney had agreed to the stipulation as to his sentence without his knowledge or consent and that, therefore, the district court should reconsider and entertain the arguments he wanted to make in favor of a “time-served” sentence. The district court denied the motion on the grounds that Derek had a lawyer and thus was not allowed to file pro se motions under the policy prohibiting “hybrid” representation. The court told Derek that if he wanted to file a motion for reconsideration claiming that his lawyer had gone off the reservation, he should have his lawyer file it for him.

Joseph Heller’s “Catch-22” was this: If a World War II bomber airman wanted to avoid flying combat missions over Europe by claiming he was insane, he had to apply for the exemption. But the combat missions were so dangerous – only 25 pct of aircrews survived the 25 missions they were to fly before being relieved – that claim madness to get out of combat was interpreted as proof of sanity, so the application would be denied. “Catch-22” now describes a paradoxical situation from which there is no escape.

Thinking that the court’s instruction that only his lawyer could file a motion claiming his lawyer had agreed to something without his client’s approval veered very close to being a “Catch-22,” Derek filed a pro se notice of appeal.

Last week, the 6^th Circuit agreed with Derek. The Circuit acknowledged that the rule against hybrid representation was a good one, because usually, whether to file certain motions and what to say in those motions are decisions for counsel, not the defendant.

“But cases like this one,” the 6^th held, “present a materially different landscape. Here, the court was not simply presented with a disagreement over strategic choices made by the attorney nor an instance of nonspecific dissatisfaction. Instead, the court was faced with the defendant’s specific allegation that his counsel made a decision affecting the overarching aims of the representation without his knowledge or assent. A defendant must be permitted to make important decisions as to the direction of his case regardless of whether he is represented. A lawyer may not override a defendant’s decision to accept or reject a plea offer or disposition offered by the government because ‘decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate…’ Where a defendant alleges conduct that amounts to such a violation, his allegations, if true, point to a breakdown in proper representation. His dissatisfaction and disagreement with his counsel should, therefore, be an apparent and pressing concern, triggering the district court’s obligation to investigate.”

The Circuit observed that the “clear thrust of the motion was that Riley wanted to proceed pro se because his counsel had agreed to a specific disposition of his § 3582 motion (a revised sentence of 144 months) without his consent. The district court then had an obligation to address that allegation directly in deciding Riley’s pro se motion.”

United States v. Riley, Case No. 24-1287, 2025 U.S.App. LEXIS 26350 (6th Cir. October 9, 2025)

~ Thomas L. Root