Question One

The Constitution guarantees a person the effective assistance of counsel for a first appeal of right. Effective counsel necessarily contemplates an unconflicted attorney. On appeal, the Eleventh Circuit learned Mr. Whitman's trial attorney concealed a juror bribery scheme. Nonetheless, the Eleventh Circuit refused to disqualify the conflicted attorney.

Should the appeals court have appointed an attorney who did not have a conflict of interest?

Question Two

This Court held that a plain-error determination involves applying the law at the time of review rather than the law at the time of the alleged error. Henderson v. United States, 568 U.S. 266 (2013). At trial, the district court did not conduct the relevant conduct analysis required by Guidelines section 1B1.3 (Amendment 790). Despite the retroactive nature of the Guidelines amdendment and obviousness of the error, the Eleventh Circuit refused to recognize and cure the error.

Does the principle announced in Henderson extend to retroactive changes in the sentencing law?

Should the appeals court have appointed an attorney who did not have a conflict of interest?