The Hobbs Act and Bank Robbery; Paladino Remand

United States v. Terrance McCarter, Case No: 04-1684 (04/27/2005): Mr. McCarter was convicted of both attempted bank robbery and a violation of the Hobbs Act, based on his kidnaping a victim with the intention of taking her to an ATM machine to make a withdrawal from her account. Although conviction and punishment for both offenses might seem to pass the Blockburger test—the offenses have different elements—the Court, looking at legislative history, could find no evidence that Congress intended double punishment for what amounted to a single crime, and the district court, on proper motion, should have set aside the Hobbs Act conviction. McCarter had not argued this point below and received identical concurrent sentences on each count. True, he was ordered to pay an extra $100 as a special assessment, but this fee was not enough to persuade the Court that there was plain error on this point.

The Court did make a Paladino remand because the prison term was based on mandaory guidelines. If the district court wants to resentence, it should vacate the Hobbs Act conviction. If not, the Hobbs Act conviction may stand. (The Court relied on legislative history to conclude that the Hobbs Act conviction, not the bank robbery conviction, was redundant.) This last portion of the opinion seems to slight the structure of a Paladino remand. The district judge does not resentence; he or she merely indicates what they would have done had they known about Booker (or what they would like to do now that they know about Booker). And then the Seventh Circuit makes a full remand for resentencing, if the judge expresses an inclination to resentence. It is doubtful that the Court really intended to collapse the two-step process envisioned in Paladino. Probably, the Court, having unraveled the meaty double jeopardy issue involved in this case, was inattentive to the niceties of the Paladino procedure.

In resolving the main issue in the appeal, the Court decided that McCarter was indeed guilty of attempted bank robbery. It acknowledged that robbing a customer of money recently withdrawn from a bank does not make one guilty of bank robbery, but it asserted that forcing the customer to withdraw money makes the customer the unwilling agent of the robber. Can this be so? If the robber forces the customer to pull a gun on a teller, then the customer, although an unwilling agent, is intimidating bank personnel, and the robber is acting through an unwilling agent. But when a customer withdraws money from an ATM, no one at the bank is subjected to a threat or placed in fear, even though the customer is in fear of her own life.

Consecutive Sentences for Supervised Release Violations

United States v. Francis T. Deutsch, Case No. 02-3235 (04/12/2005): Deutsch was sentenced on multiple counts, with a term of supervised release attached to each count. After his release from prison, he violated the terms of his release. His guidelines range for the violation was 12 to 18 months. The district court imposed consecutive prison terms for a total of 61 months.

Whether the judge had the power to impose consecutive sentences for a violation of supervised release was a matter of first impression in this Circuit, and the Court joined other Circuits in affirming the district judge's authority to impose consecutive sentences.

Harmless Error in a Booker Case

United States v. James T. Schlifer, Case No. 04-3398 (04/07/2005): Mr. Schlifer, anticipating Booker, objected to use of the sentencing guidelines as mandatory. The question on appeal, therefore, was harmless error, not plain error. The Court held that the government had not sustained its burden of persuasion on the question of harmless error. The government argued: (1) the district judge departed downward a mere three levels in return for Schlifer’s co-operation; (2) the judge refused a downward departure under section 5K2.0; and (3) the judge had referred to Schlifer’s prior criminal record as "horrendous." Yet all three responses by the district judge came in the context of a mandatory system, in which the judge’s discretion was more closely cabined. None says much about what the judge would have done had she known that the guidelines were merely advisory. The case was remanded for resentencing.

It is of some interest that the opinion was circulated to the entire Court before issuance. Since the opinion is presented as a fairly straightforward application of familiar principles, one wonders why it was circulated to the entire Court.

(Note that the opinion also reasserts prior Circuit law that there is no right to jury trial on the question of whether prior convictions are "related" for purposes of the career offender guideline. Although the opinion cites the recent Supreme Court decision in Shepard v. United States, it makes no effort to explain why Shepard works no change in the law on this issue.)

Dicta on Reasonableness in the Post-Booker World

United States v. Gary R. George, Case No. 04-3099 (04/04/2005): Given the single charge to which he pleaded guilty, the defendant faced a maximum of five years in prison. His sentencing took place after the Seventh Circuit’s decision in Booker, but before the Supreme Court’s decision. His guidelines range was 63 to 78 months. The district judge, taking the position that he could impose any sentence he thought appropriate, sentenced George to 48 months. The Seventh Circuit’s opinion tells us only that George’s argument on appeal was that the sentence violated the Sixth Amendment right guaranteed in Booker. The Court rightly pointed out that the district court sentenced Mr. George without treating the guidelines as mandatory, which was sufficient compliance with Booker. We are also told that George did not claim that the sentence was unreasonable as measured by the new Booker standard. Given the Court’s statement of the case, it is somewhat difficult to understand the point of George’s appeal.

In rejecting this appeal, the Court threw in some disturbing dictum. It is not necessary for a district judge to "rehearse on the record all of the considerations that 18 U.S.C. §3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less." The Seventh Circuit further noted that, "It is hard to conceive of below-range sentences that would be unreasonably high." The Court gave no explanation as to why the guidelines range would have such pride of place.

Mr. George did receive some relief on the calculation of restitution. The district court imposed a substantial restitution obligation. The record presented a number of different choices for the district judge to select, and he gave no explanation of how he arrived at the dollar amount he chose. The Court noted that Circuit Rule 50 requires an explanation for all appealable orders. The judge was directed to set forth the basis for the amount of restitution it would order.

Marginal Deterrence as Part of the Booker Calculation

United States v. Ernest Newsom, Case No. 03-3366 (04/01/2005): The Court ordered a limited remand under Paladino. Nonetheless, it dealt with the defendant’s arguments about the calculation of the sentencing guidelines (which it found basically correct). Hence, on remand, the district court has the advantage of knowing the guidelines range and can proceed to the question of what sentence should be given under guidelines that are now advisory.

At the very end of the opinion, the Court made a suggestion about the possible sentence. The defendant was sentenced to 27 years in prison for the possession (and production) of child pornography. The Court invoked the concept of "marginal deterrence" ; that is, the harshest sentences should be reserved for the most culpable behavior. It remarked that a sentence of 27 years might leave little room for additional punishment for those defendants who commit more aggravated offenses, such as offenses involving physical abuse of the victim. On remand, the district judge, considering all the factors in 18 U.S.C. §3553(a), may conclude that a sentence lower than the guidelines sentence would be appropriate.

Retroactivity of Crawford v. Washington

Edward A. Murillo v. Matthew J. Frank, Case No. 04-2202 (04/01/2005): The Court ruled that Crawford v. Washington, 124 S. Ct. 1354 (2005), dealing with the right of confrontation, is not retroactive. This decision is in accord with three other Circuits, although the Ninth Circuit has ruled that Crawford is retroactive. Bockting v. Bayer, 2005 U.S. App. LEXIS 3102 (9th Cir. 2005).