Seventh Circuit Blog

Gearing up for the Post-Rita/Claiborne World?

2007-02-21T14:58:00.000-05:00

United States v. Nitch, No. 05-2603 (February 21, 2007): Mr. Nitch received a sentence of 168 months, which was apparently within his calculated guidelines range, although the opinion does not state what that range was. In imposing sentence, the district court stated:

Mr. Nitch, I sentenced you to 14 years. It was not the top of the guideline, not at the bottom. You messed up when you were out on bond and that affected you. The jury found you guilty beyond a reasonable doubt, and the jury believed, based upon the testimony, that you were involved in more than you believed you were involved in. And I know you got started at an early age, young age in this, and I know you tried to get out, but the law is the law. And you knew better.

On appeal, Mr. Nitch argued that the sentence was unreasonable because the district court did not explain why it chose that sentence.

The Court invoked its doctrine, e.g., United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005), that a sentence within the guidelines is, on appeal, presumptively reasonable.

But the Court also recognized that the Supreme Court is currently considering the validity of such a presumption. It declared that it had also considered the sentence without employing a presumption. Without much explanation, it concluded that a sentence of 168 months was not unreasonable. Mr. Nitch’s use of drugs while on bond and the amount of the drugs involved in the conspiracy justified a "significant sentence."

Ineffective Assistance of Counsel

2007-02-13T11:44:00.000-05:00

Christopher Raygoza v. Don Hulick, No. 05-2340 (January 25, 2007): Mr. Raygoza was convicted of murder. The Seventh Circuit granted habeas corpus relief based on ineffective assistance of counsel.

Counsel presented an alibi defense, but did very little to develop it. According to numerous potential witnesses, Raygoza at the time of the murder had been at a birthday party for his mother at her house, which was many miles from the scene of the crime. But counsel called only one witness, Raygoza’s girlfriend, whom he interviewed for the first time on the day he called her as a witness. Counsel knew that Raygoza's mother and siblings were also potential witnesses, but did not probe enough to know that the occasion for the family’s being at the house was the mother’s birthday party and did not know about other attendees at the party. He also knew that a family friend, a lawyer, had called the mother’s house during the crucial time period and had spoken with Raygoza, but counsel did not call this witness or obtain corroborating phone records, since he chose to concentrate on impeaching eye witness identifications of the state’s witnesses.

The Court held that it was deficient performance not to interview and call these additional witnesses. The attorney’s belief that alibi was generally a weak defense could not make his decision a strategic decision immune to review. With so many potential witnesses, the weakness of any one witness or even each of them was not a good reason to present only one of them. He had a duty to uncover all the potential witnesses.

After the conviction, but before the sentencing, Raygoza obtained new counsel and filed a motion for a new trial based on the attorney’s ineffectiveness. The trial judge, denying the motion, commented that even with these additional witnesses, he would have nonetheless convicted. (The trial was a bench trial.) The Court held that since effect on the outcome is an objective inquiry, the state judge missed the mark by focusing on what he would have done. It further noted that, in making his finding of guilt, the state judge had emphasized that Raygoza had called only one witness in support of the defense.

The opinion has two interesting facets. First, the Court once again signaled that it recognizes the inherent fallibility of eye witness identifications. Hence, the importance of properly developing the alibi defense. Second, in discussing the distance between the murder scene and the mother’s house, the Court referred to Mapquest. It is unclear whether the Mapquest calculation was part of the record or whether the Court, as it has in the past, searched the internet for additional information.

Finally, the opinion, in a continuing break from the tradition of allowing the attorneys to remain anonymous, clearly identified defense counsel by name.

Fraud Guidelines and the Risk of Death or Bodily Injury

2007-02-12T13:48:00.000-05:00

United States v. Adam Babul, No. 05-4538 (february 9, 2007): Mr. Babul aided applicants for truck driving licenses. In order to take advantage of the easier licensing procedures in Wisconsin, he helped his applicants create false claims of residency in Wisconsin. In doing so, he submitted false statements to banks in Wisconsin. The banks lost no money, but the district court turned to the provision in the fraud guideline that sets the offense level at a minimum of 14 if the offense involved "the conscious or reckless risk of death or serious bodily injury."

In upholding this application of the guidelines, the Court ignored the most basic question: should there be some proximate cause type of limitation? One might be able to trace a chain of factual causation between telling a lie to a bank, which results in evidence of Wisconsin residency, which results in obtaining a driver’s license that could not be otherwise obtained, which results in a driver’s being on the road, which results in the driver’s being in a collision, and which injures someone. But can anyone seriously believe that the drafters of the guidelines had this sort of Rube Goldberg scenario in mind? Moreover, if the guideline is meant to cover this type of situation, it also covers all sorts of other situations, so numerous that the greatest collection of experts could envision only a tiny fraction of them. Why would all these freakish events call for a level of at least 14, and how is one to gauge when to go higher?

After ignoring these considerations, the Court asked a legitimate question (legitimate only if one believes that this game is worth the candle). Does being unlicensed really create any greater risk to the public? It chided both sides for not marshaling data that would bear on this issue. But, never mind. "Judges are entitled to approach many empirical issues with a set of prior beliefs based on experience, and when the record is silent they may make decisions based on those priors [sic]."

Sex Offender Treatment for a Liar

2007-02-12T13:26:00.000-05:00

United States v. Kenneth Ross, No. 06-1821 (January 29, 2007): Mr. Ross was sentenced for making false statements to the FBI. His false statement consisted of telling the FBI that he knew the location of a disappeared child victim. In reality, he had no such knowledge. The court sentenced him to prison and added as a condition of his supervised release that he participate in a program of sex offender mental health assessment and treatment.

Mr. Ross had never been charged with or convicted of a sex offense. When he had been in prison on an earlier offense, he had received a violation report for allegedly engaging in sexual activities with other prisoners. A psychological consultation opined that he was unlikely to act out in a sexually violent manner.

Since Mr. Ross’ attorney did not object to this special condition of supervised release, the Court considered the claimed error under the plain error standard. Acknowledging a split of authority in other Circuits, the Court approved this condition on the theory that it did not believe that it represented a miscarriage of justice. The Court pointed to Mr. Ross' fantasies concerning children as a basis for concluding that sex offender treatment was permissible, absent an objection by counsel.

Drug Treatment as a Condition of Supervised Release

2007-02-12T13:18:00.000-05:00

United States v. Jose A. Tejeda, No. 06-1492 (February 7, 2007): The judge required as a condition of supervised release that Mr. Tejeda participate in a drug program at the direction of the probation officer. This sentence was illegal, since it gave too much discretion to the probation officer, but counsel did not object.

The Court made clear that improper delegation to the probation officer would not always constitute plain error, although it suggested that it was not backing away from other cases in which it has ruled that improper delegation as to restitution is always plain error. It found no plain error in the drug treatment condition. In part it relied on a defendant’s ability to seek modification of the terms of supervised release if the need were to arise. This need could arise only after Mr. Tejeda had completed a lenghty prison sentence.

Acquitted Conduct in Sentencing

2007-02-12T13:16:00.000-05:00

United States v. Dewan Anthony Horne, No. 05-4049 (February 5, 2007): Mr. Horne’s sentence was increased because of his use of a gun, a charge on which he had been acquitted. The Court restated the conventional doctrine that acquitted conduct may be considered, but it did suggest that it might have a different view if the defendant is convicted of a "very minor crime," but sentenced on the basis of serious acquitted crimes. Thankfully, there was no reference to the shopworn language about tails and dogs.

Tracking Devices on Automobiles

2007-02-12T13:13:00.000-05:00

United States v. Garcia, No. 06-2741 (February 2, 2007): The police attached a tracking device to Mr. Garcia’s truck and learned valuable information about the location of his drug lab. The Court found no Fourth Amendment violation. Since the police could have legitimately followed him by tailing him in a police car, they could equally make use of modern technology.

Scheduling of Oral Arguments

2007-01-25T15:31:00.000-05:00

Our office recently received an order adjusting the briefing schedule in a pending appeal. The order contained the following language, which was captioned "Important Scheduling Notice!," "Criminal appeals are scheduled shortly after the filing of the main brief. . ." As is well known, once an oral argument is scheduled, it is difficult to obtain a different date. Counsel who foresee a scheduling problem will typically write the clerk and so advise; the Court has been accommodating to requests that oral argument not be assigned for particular dates. Generally, counsel would wait until all the briefs were submitted before making such a request. With this new practice, counsel should be looking at their calendars much earlier.

Escape as a Crime of Violence

2007-01-10T12:28:00.000-05:00

United States v. Deondery Chambers, No. 06-2405 (January 9, 2007): Mr. Chambers was sentenced as an armed career criminal. One of his three crimes of violence was a state conviction for escape from a penal institution. His escape was not of the "Escape from Alcatraz" variety; instead, he merely failed to report on time to begin serving a sentence. Under 18 U.S.C. sec. 924(e), a felony is violent if it "involves conduct that presents a serious potential risk of physical injury to another." Under the law of the Circuit, escape always meets this definition. See United States v. Golden, 466 F.3d 612 (7th Cir. 2006).

For that reason, the Court affirmed the sentence. But the panel expressed serious misgivings about this position. "We shall adhere to the precedents for now. But it is an embarrassment to the law when judges base decisions of consequence on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences . . ." The Court suggested that Congress, the Sentencing Commission, or academics ought to gather information on the incidence of violence presented by escapes that involve no more than the failure to report as directed.

Special note: as of this posting, this opinion does not appear on the Court's website, although it is a published opinion available in a slipsheet format.

The Appendix Is Not a Body Part

2006-12-20T12:13:00.000-05:00

United States v. Robert White, No. 06-1769 (December 19, 2006): Defense counsel presented a seriously inadequate appendix to the opening brief and, worse, signed a certificate that the appendix was complete and in compliance with the rules. The Court re-emphasized that the appendix is not a mindless formality; it serves an important purpose. After affirming the conviction and sentence, the Court entered a rule to show cause why counsel should not be sanctioned in the amount of $1,000.00.

New Direction for Eyewitness Identification?

2006-12-20T11:52:00.000-05:00

United States v. Shaun Brown, No. 05-4690 (December 19, 2006): Mr. Brown argued that the eyewitness identification of him by two police officers was tainted because, after they saw the alleged offender, a confederate gave them a name for the face, and they immediately consulted a mug shot of that person, confirming the information provided by the informer. Mr. Brown argued that this type of photo identification was impermissibly suggestive. In the end, the Court concluded that the officers were not like an ordinary citizen, who might be susceptible to the suggestive influence of a single photo. Instead, they were skeptical of what they had been told and consulted the photo to confirm or deny the information provided. Their interest was to verify the name given them for a face embedded in their memory. (The rationale given by the district judge was quite different: it was the typical pablum to the effect that the jury could evaluate the effect of the photo procedure.)

In working up to this conclusion, the Court presented some interesting comments on what procedure produces the most reliable results when an ordinary citizen is asked to make an eyewitness identification. Drawing heavily on social science literature (which reveals the typical pablum for the nonsense that it is), the Court lauded the "repeated sequential display." In this procedure, the witness is shown a series of photographs, one by one, and asked if the person in the photo is the offender. The witness must give an answer immediately after being shown each photo and is not allowed to make a judgment only after seeing all the photos. The witness is not told how many photographs will be shown. Ideally, the officer conducting the procedure does not know which photo contains the suspect, and in this way cannot give the witness even unintended hints. Moreover, this one-by-one display should then be repeated. Although the opinion dealt with photos, the same procedures would be equally applicable to in-person showups; that is, a series of persons, one by one, would be exhibited to the witness, who would be asked to say yes or no as to each person immediately after the presentation of that person. The opinion does not state that this type of procedure is mandated by the Constitution, although it does conclude that it better addresses the concerns raised in the Supreme Court’s decisions on eyewitness identification.

Amnesia and Fitness for Trial

2006-12-12T11:49:00.000-05:00

United States v. Rodney Andrews, No. 06-1448 (December 7, 2006): Mr. Andrews was examined and found fit to stand trial, even though he was suffering from amnesia that covered the time of the charged bank robbery. The courts, both at trial and on review, seemed to take as a given that Mr. Andrews was truly suffering from amnesia and was not malingering. The Seventh Circuit held that there was no abuse of discretion in refusing a second competency exam. The basic holding was that even though a defendant suffers from amnesia, it is still possible to be fit for trial, so long as the defendant understands the nature of the proceedings and can co-operate with counsel. How can one co-operate if suffering from amnesia?

The Court set out several pertinent factors, most of which boil down to this: was the defendant able to present a defense, even though he could not remember anything about his activities at the time in question. A principal component of this inquiry is the strength of the government’s evidence. The Court thought the evidence in this case was so strong that the defendant’s amnesia was not a barrier to trial.

The facts in this case do not seem to be as strong as suggested by the opinion. No teller seems to have identified him. The evidence consisted of a surveillance video showing the robber smoking cigarettes outside the bank, cigarette butts obtained from outside the bank, and DNA test results that were positive as to Mr. Andrews on one of the butts. (We are not told what results came from the other butts.) As is often the case, the video does not seem to have presented a clear enough image of the robber’s face. Perhaps this evidence is strong enough to meet the forgiving test for Rule 29 motions, but it is an overstatement to say that this evidence is so overwhelming that it makes no difference that the defendant cannot remember where he was and what he was doing at the time of the robbery.

The Court observed that Mr. Andrews "could have asked his family members or friends where he had been or with whom during the time in question." There are a number of problems with this observation. For any given person, "family or friends" can cover a large number of persons. A defendant cannot know which ones to quiz if he does not know what he was doing at the crucial time. Moreover, one should not assume that a person is always in the company of family or friends. So resort to these people is meaningless if they were not present, and the defendant cannot hope to know what other avenues to pursue if family or friends is not an option.

Finally, the charge in this case, bank robbery, often calls for a straightforward defense: someone else is the robber. How does this test work when the acts are undisputed, but there are questions about intent or knowledge?

In staking out this position, the Court rejected a contrary approach taken by the Court of Appeals for the D.C. Circuit.

Implicit Waiver of Counsel at Trial

2006-12-08T16:51:00.000-05:00

United States v. Glen Murphy, No. 06-1309 (December 8, 2006): This opinion suggests that a defendant can impliedly waive the right to be represented by counsel. Mr. Murphy was appointed counsel, but then successfully moved to discharge him. He interviewed several attorneys as potentially retained counsel, one of whom rejected the case since the retainer being offered was $20.00. Nine months after arraignment, the judge started the trial with Mr. Murphy representing himself. It does not appear from the opinion that the judge ever told Mr. Murphy that a firm trial date was being set and gave him advance warning that, if he had not secured counsel by that date, he would be representing himself.

The opinion focuses on a district judge’s right to make a determination of a defendant’s entitlement to appointed counsel. Although the district court had previously appointed counsel, it insisted that Mr. Murphy file a financial affidavit before it would appoint a replacement. Mr. Murphy never complied with this request. Why the district court was making this requirement is unclear. It had, after all, initially appointed counsel without the filing of the affidavit, and the appointed counsel was dismissed because attorney and client disagreed on how to defend the case. The departure of the appointed counsel had nothing to do with Mr. Murphy’s claim of indigence.

The real issue seems to be whether a defendant can delay trial by refusing to form an attorney-client relationship. The answer to that question should be obvious, and it does not rest on a theory of implied waiver. One hopes that the district judge did give Mr. Murphy the appropriate warning, even though that event is not reflected in the Seventh Circuit’s opinion.

Facts or Factoids?

2006-12-06T15:03:00.000-05:00

United States v. Arturo Orozco-Vasquez, No. 05-3920 (December 5, 2006): Mr. Orozco-Vasquez received a sentence of 120 months, well above his calculated guidelines range of 63 to 73 months. Although the opinion is less than clear, it appears that the district court’s explanation for this substantial variance was Mr. Vasquez’ criminal record, his membership in a gang, and his involvement in uncharged drug crimes. Apparently, none of these factors affected the calculation of the guidelines.

As framed by the Court, the appeal centered around the lack of support for factual findings made by the district court. In approving this sentence, the Court has emphasized or created a distinction that could have validity in some instances, but can create much mischief if not properly employed. Here is the key passage:

. . . not every fact-based statement a judge makes at sentencing is a "factual finding." Much of what a judge says in imposing and explaining a sentence consists of observations and assessments that form the basis of the judge’s consideration of the § 3553(a) sentencing factors. Sentencing post-Booker requires the sentencing judge to properly calculate the advisory guidelines range in the same manner as before Booker and then to make a discretionary decision whether to sentence the defendant within the advisory range or outside it in light of the very broadly stated sentencing factors set forth in § 3553(a). . . . The second step is an evaluative process by which the judge considers the particular statutory factors that inform the sentence he has decided to impose. We have held that the "duty to consider the statutory factors is not a duty to make findings." . . . Judicial observations about such factors . . . are not "facts" requiring "findings,"as when the judge calculates the guidelines range. As we have noted, only where a particular fact is contested and "decisive to the choice of sentence" must there be explicit fact-finding to support the judge’s exercise of sentencing discretion.

It is undoubtedly true that, for example, a defendant’s potential to be rehabilitated is a question that is not entirely factual. But does this obvious truth mean that the judge can be irrational in making conclusions about subsidiary findings that are for the most part factual? Consider two of the "findings" that were the subject of this appeal.

The district judge made a finding that, based on language Mr. Orozco, had used in a wiretapped conversation, he was a repeat drug dealer. The government presented an affidavit from one of its "experts," who opined that "possibly" or "probably" drug code words appeared in the conversation. Whether this sort of affidavit satisfies even the low preponderance standard became irrelevant because, as declared by the Seventh Circuit, the judge’s finding that Mr. Orozco used drug code words was not a "factual finding." A hunch that someone is a bigger drug dealer than is revealed by the evidence is a basis for enhancing a sentence, even though there are not enough facts to jack up the defendant’s relevant conduct.

Likewise, the district judge found that Mr. Orozco was a gang member, relying, in part, on his being shot in the head. Mr. Orozco said he had been shot by a car thief. The district judge thought the shooting was the result of a gang dispute. Once again, the Seventh Circuit thought the district judge’s take on this incident "was not a factual finding." Since this conclusion was not a factual finding, there was no requirement that the judge base it on anything other than surmise, intuition, or worse.

Of course, this framework should also apply to cases in which the government appeals a downward variance.

Full Speed Ahead!

2006-12-06T12:13:00.000-05:00

United States v. Jose Francisco Gama-Gonzalez, No. 06-1965 (December 5, 2006): Mr. Gama-Gonzalez received a sentence at the low end of his guidelines, and the Seventh Circuit affirmed. This very brief opinion is noteworthy for two reasons.

First, the Court saw no reason to hold off decision until the Supreme Court decides the two Booker cases on which it recently granted certiorari. The opinion could not conceive that the Supreme Court’s decision would lead to a different result. Regardless of whether this assessment is correct, counsel should be aware that sentencing appeals will move forward without much concern as to how the Supreme Court will resolve the difficult issues now pending before the Supreme Court.

Second, Mr. Gama-Gonzalez had presented an argument for a downward variance. Apparently, the district judge did not set forth any reasons for rejecting that position and the requested variance. In the Seventh Circuit’s view, the district judge "did not need to discuss the subject," since the argument was so insubstantial. Whether the argument was insubstantial or not, it is curious that a decision-maker should be able to make a decision without commenting at all on the merits of a contrary argument. If an argument is no more than a fleeting reference in a footnote, the Court’s approach is an application of well-established rules. But if an argument is fully developed, simple fairness would require the decision-maker to give some explanation.

Insufficient Evidence in a Gun Case; Third-Party Consents

2006-11-27T11:14:00.000-05:00

United States v. Daniel Groves, Sr., No. 05-2902 (November 22, 2006): This case raises two issues that are related only in the sense that they arose in the same case.

Mr. Groves was charged with being a felon in possession of a gun. No gun was ever recovered, but the government called an expert who stated that Indiana (the place of the alleged crime) is not the home to any "major" manufacturers of shotguns. The expert never expanded on what he considered to be a "major" manufacturer.

On appeal, it was argued that there was insufficient proof that the gun had traveled in interstate commerce, an argument that was not developed at trial in the Rule 29 motion. Considering this argument on a plain error basis, the Seventh Circuit found it persuasive, while noting that it rarely reverses for insufficiency of the evidence. The Court concluded that it would be pure speculation to say that this gun was manufactured outside Indiana, when the only evidence was that Indiana had no "major" manufacturers. There could be enough "minor" manufacturers in Indiana to make it more likely than not that the gun was manufactured in the state. In response to the government argument that its prosecutions would be stymied whenever the gun was not recovered, the Court suggested that testimony from the witnesses describing the gun could often provide a basis for identifying it as an out-of-state weapon. The Court also offered the possibility that if an expert gives percentages as to how many shotguns are manufactured out of state, then the record might make it "highly likely" that the gun was not locally manufactured.

The government also argued that even if the gun had not traveled from out of state, its possession could "affect" interstate commerce. In this regard, it offered imaginary scenarios of the effects of gun possession. These fanciful arguments foundered on United States v. Lopez, 514 U.S. 549 (1995).

Mr. Groves was also charged with unlawful possession of ammunition, an increasingly popular tactic in weak gun cases. For this offense, the government had the actual ammunition, which it seized from his apartment after a claimed consent from Mr. Groves’ girlfriend. The Court reversed and remanded on the suppression issues, since the district court did not make findings of fact sufficiently detailed to permit meaningful appellate review. This part of the opinion contains a brief discussion of the Supreme Court’s recent decision in Georgia v. Randolph, 126 S. Ct. 1515 (2006), which concerns denial of consent by one tenant and grant by another.

Habeas Petitions: The Importance of the Oath

2006-11-07T12:06:00.000-05:00

Saidi Kafo v. United States, No. 05-3034 (November 3, 2006): Mr. Kafo submitted a petition to set aside his conviction under 28 U.S.C. sec. 2255. He alleged that his attorney had not filed a notice of appeal even though he had requested the attorney to do so. The petition was not signed under penalty of perjury, and the district court dismissed, reasoning that he had no evidence to support his claim.

Reversing, the Seventh Circuit ruled that had he signed the petition under penalty of perjury, as required by Rule 2 of the special rules for 2255 cases, he would have presented sufficient evidence to require an evidentiary hearing on this question. The district court erred in not giving him a chance to attach a sworn affirmation to his allegations. Although his petition was deficient, the advisory notes suggest that the proper course is to give leave to amend.

In the district court, Mr. Kafo was pressing his petition on a pro se basis. Sometimes 2255 petitioners start the proceedings with a pleading prepared by counsel. It is a common understanding that a petition signed by counsel does not require the signature of the client under penalty of perjury. After this decision, the better practice would be for counsel to obtain the client’s affirmation. If the one-year statute of limitations is a problem, counsel should be able to file an affirmation after the initial pleading has been filed.

Booker Cert Grants

2006-11-06T11:12:00.000-05:00

By now probably everyone knows that the Supreme Court has granted certiorari in two Booker cases, one in which the sentence was within the guidelines and one in which the sentence was below the guidelines and the reviewing court reversed. Mario Claiborne v. United States (06-5618) and Victor A. Rita v. United States (06-5754). What the Supreme Court will do with these two cases and what dicta it will create is beyond accurate prediction.

But the grant of cert should provide a powerful reminder that the current Seventh Circuit case law on Booker is just that—current. If the Supreme Court should create a more defendant-friendly landscape, we can be certain that those who did not keep these issues alive will have a tough time reaping the benefits of a new test.

United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005) and similar cases have been cited so often that by now it may seem hopeless to appeal sentences within the guidelines, and of course right now it is often hopeless (but not always—think United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)). But filing a hopeless appeal is the only way to keep these issues alive for our clients.

Motion to Strike a Brief

2006-09-25T15:32:00.000-04:00

Custom Vehicles, Inc. v. Forest River, Inc, No. 06-2009 (September 25, 2006): This is a civil case, and it raises an issue that seldom arises for the criminal practitioner. Yet the in-chambers opinion of Judge Easterbrook contains some information of interest to all practitioners.

Claiming that various statements in the appellee’s brief were unsupported by the record, the appellant filed a motion to strike those portions of the appellee’s brief. Judge Easterbrook denied the motion. As background, the judge observed that in any given week one judge decides all the motions for that week. The judge’s involvement in the motion has no relationship to his or her being assigned to the case on the merits. As a consequence, any motion that calls for the motions judge to rule on what should or should not be in the brief can have the result of taking up the time of four, not three, judges, which is not an efficient use of judicial resources.

Judge Easterbrook noted that the rules have no provision for striking a brief or portions of a brief. If a party believes that an adversary has played fast and loose, the party should say so in its responsive brief. If there is no scheduled responsive brief, the aggrieved party can ask to file a supplemental brief to correct the error. But there is no place for a motion that essentially asks the Court to edit the opponent’s brief.

Judge Easterbrook did allow that motions to strike may sometimes have a place, giving the hypothetical example of a brief that discussed a trade secret that was under court seal. He also referred to the Court’s power to strike briefs that violate the Court’s order to avoid duplicative briefs by multiple parties.

Finally, he revealed that in the past, when denying such motions, he has also entered an order deducting from the word limit for the movant’s brief the number of words contained in the motion to strike. With this opinion, he gave notice that he will be deducting double the number of words from the responsive brief to be filed by the movant. This practice will apply not only to motions to strike, but also to "any other equivalently absurd, time-wasting motion."

Obviously, this opinion is not binding on any other member of the Court, but it provides some key insights into the process. Moreover, since it is unlikely that anyone will ever know what week is Judge Easterbrook's week to handle motions, it would be risky to file one of these motions.

A New Twist on Standard of Proof at Sentencing

2006-09-19T13:18:00.000-04:00

United States v. Christopher K.P. Reuter, No. 05-4503 (September 19, 2006): Mr. Reuter’s guidelines range, without adjustments, initially topped out at 105 months. However, the district court found that he had committed a murder during the course of the conspiracy. With that finding (and several unspecified others), his range became 360 to 480 months, and he received a sentence of 360 months.

His attorney filed an Anders brief. The Seventh Circuit acknowledged the claim that the calculations should have been made under a clear and convincing standard, since the sentence after the enhancements was the proverbial tail wagging the dog. However, since Mr. Reuter had confessed to the murder and since his confession had been corroborated, the Court concluded that this higher standard would have made no difference.

In dictum, the Court observed that in the past it, like other courts, had allowed for the possibility that the clear and convincing standard might apply, but had never applied it. That debate, the Court continued, has now been rendered academic by Booker, but with this consequence.

After a judge calculates the guidelines and creates a tail powerful enough to wag the dog, Booker now allows the judge to make a downward variance. "A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances."

Plain Error in Calculating Guidelines

2006-09-05T14:30:00.000-04:00

United States v. Andre D. Bennett, No. 05-3709 (August 29, 2006): Mr. Bennett received a four-level enhancement for his use of a firearm in connection with another felony offense. Aggravated battery under Illinois law was the designated other felony offense. Yet in Illinois aggravated battery is a misdemeanor. This point was not raised below or in the appellant’s opening brief. Without much discussion, the Court determined that the error concerning Illinois law was a "plain error," and remanded for resentencing.

Irrelevant Evidence Leads to Reversal

2006-09-05T14:25:00.000-04:00

United States v. Herman Cunningham, No. 05-1515 (August 29, 2006): This is a rare reversal for the improper admission of evidence. The Government presented the results of a Title III wiretap. As part of its foundation, it introduced testimony about the review process involved in the Title III application. This evidence stressed the painstaking review by high-level DOJ officials. The defense objected on the ground that the government was introducing opinion testimony by government officials concerning their clients’ guilt. On appeal, the Court agreed that this evidence was entirely irrelevant and prejudicial.

Confrontation Clause and Blood Test Results

2006-09-05T14:11:00.000-04:00

United States v. Brian K. Ellis, No. 05-3942 (August 22, 2006): Mr. Ellis was arrested on a DUI charge. He was taken to a hospital for blood and urine tests. At trial, the court admitted a hospital report that he tested positive for drugs. He argued that the admission of this report violated the Confrontation Clause, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004).

The Court acknowledged that this report was factually different from most business records. The author knew that the entrees she was making would or could become part of a litigated case. Yet it found that the report was no different from traditional business records.

So what’s next? Reports of DEA chemists that the seized materials are controlled substances? Reports of handwriting examiners? Reports of fingerprint examiners?

Use of a Minor

2006-09-05T14:06:00.000-04:00

United States v. Brazinskas, No. 05-4181 (August 15, 2006): The district court, relying on U.S.S.G. section 3B1.4, added two levels to Mr. Brazinskas’ sentence because he used a minor to commit the offense. The Seventh Circuit rejected the claim on appeal that the defendant must know that he is using a minor. It reasoned that the purpose of the enhancement is to protect minors, and this purpose would be frustrated if the government had to prove that the defendant knew that the person being used was a minor.

Review of Below-Guidelines Sentences

2006-09-05T14:00:00.000-04:00

United States v. Darryl Wallace, No. 05-3675 (August 14, 2006): The Court reversed a below Guidelines sentence. It perceived that the district court had taken into account the actual loss, not the intended loss, the latter being considerably higher. Although it reversed and remanded, the Court emphasized several points of importance to the defense bar.

The government complained vigorously that the sentence imposed was a 100% reduction, which was a higher percentage than the reductions disapproved in several cases from the Eighth Circuit. To this, the Seventh Circuit replied, "We are reluctant to distill the reasonableness inquiry into a numbers game . . ."

The Court also addressed the distinction between reasons for a variance that cut across all cases and reasons that are more individualized. As an example of the former, the disparity for crack cases is not, by itself, a basis for a variance, since the disparity implicates all defendants charged in crack cases. By contrast, the district judge could take into account Mr. Wallace’s crime-free life before the offense of conviction, his various personal difficulties, his remorse, and his participation in Gamblers Anonymous. These were individualized factors.

Nor did the Court rule out the possibility that the district court could, on remand, impose the same sentence. It noted that the "government has vigorously defended similarly substantial upward deviations from the recommended range, and we are concerned to maintain evenhanded standards of reasonableness on both sides of the line."

Disclosure note: Mr. Wallace is represented by our office.

Transcripts in State Prisoner Habeas Cases

2006-09-05T13:56:00.000-04:00

Dennis Thompson, Jr. v. Deirdre Battaglia, No. 04-3110 (August 14, 2006): In denying Mr. Thompson’s request for post-conviction relief under 28 U.S.C. sec. 2254, the Court commented on the procedure for bringing the transcripts of the state proceedings before the federal courts. Under the special rules that govern the processing of section 2254 cases, the respondent must attach relevant portions of the transcript. The district court may order the state to present additional portions. In this case, the state presented no transcripts at all. The Seventh Circuit found this approach "slipshod, at best," and recommended that in all cases the entire trial transcript should be made a part of the federal record. Nonetheless, the Court believed that it could decide the case on the record before it.

Ex Post Facto Clause and the Sentencing Guidelines

2006-08-14T12:48:00.000-04:00

United States v. Rebecca S. Demaree, No. 05-4213 (August 11, 2006): Ms. Demaree was sentenced to 30 months in prison. At the time of her offense, the Guidelines for her offense gave a range of 18 to 24 months. The Guidelines in effect at the time of her sentencing suggested a range of 27 to 33 months. The district judge picked the later, harsher Guidelines, but stated that if the older Guidelines were to apply, he would have sentenced her to 27 months in prison.

The government agreed with the defense that the judge’s choice of the later guidelines violated the ex post fact clause of the Constitution. But the Court refused to accept the government’s concession. Since the Guidelines are now advisory, use of a later, harsher version does not violate the ex post facto clause.

The Court stressed that under the new regime the district court is neither required nor permitted to presume that a sentence within the guidelines is the correct sentence. A sentence, whether inside or outside the range, is subject to "only light appellate review."

A number of cases from other Circuits have assumed the opposite answer to this issue. It remains to be seen how this issue will be resolved by the Supreme Court.

Right to Plead Guilty

2006-08-14T12:21:00.000-04:00

United States v. Rafael Rea-Beltran, No. 04-2305 (August 10, 2006): Mr. Beltran entered a plea to illegal reentry by an alien, but the district judge set aside his plea. Mr. Beltran stated to the court that he believed he had permission to reenter the country. He went to trial on this charge, as well as an additional charge, which would have been dismissed under the terms of the plea agreement. On appeal, he challenged the district judge’s refusal to accept his guilty plea.

The Court acknowledged that there is no constitutional right to plead guilty. But under Federal Rule of Criminal Procedure 11, the district court cannot act arbitrarily in rejecting a guilty plea. To comply with this duty, the court must state a "sound reason" for rejecting a plea. In this case, the district court did not have a sound reason. It rejected the plea because of the mistaken notion that Mr. Beltran would have a defense if he believed that he had the Attorney General’s permission to reenter the country. In fact, said the Seventh Circuit, the crime is committed if there has been no permission to reenter. A mistaken belief that permission has been given is not a defense. Hence, the district court had no sound reason for rejecting the plea.

New Directions for FRE 404(b)?

2006-08-02T15:10:00.000-04:00

United States v. Keefer Jones, No. 04-2447 (August 1, 2006): Mr. Jones was convicted of possession with intent to distribute crack. Invoking Federal Rule of Evidence 404(b), the government introduced a prior conviction for drug distribution. Its theory was that this conviction went to the issue of intent.

On appeal the Court upheld the conviction, but its remarks suggest that district courts need to be more careful and deliberate in their consideration of such evidence.

"Although we must give great deference to the district court’s decision to admit the evidence, we pause to point out that our examination of the record in this case reveals that the district court’s consideration of the matter does not appear to reflect the sort of critical evaluation of the issue that we believe ought to be undertaken in determining whether, in an exercise of discretion, such evidence ought to be admitted on the issue of intent. As far as we can ascertain from the cold record, in deciding the matter, the court recited the governing principles from our case law, but otherwise revealed little in the way of critical analysis as to how those principles ought to apply to the facts of this particular case. This lapse well may be attributable, in part at least, to our own treatment of such matters on occasion; our cases have not always reflected a critical application of the principles reflected in the case law to the facts of the individual case."

The Court also noted that defense counsel did little to focus the district court’s attention on the specific facts of this case.

Although he joined in the Court’s opinion, Judge Easterbrook’s concurring opinion suggested that district judges must give more thought to the admission of Rule 404(b) evidence. He emphasized that the Rule decrees that such evidence can be admitted, not that it is automatically admissible. It must be relevant as measured by FRE 402, and its probative value must outweigh its potential for prejudice, as mandated by FRE 403. He expressed grave doubt that a conviction for another drug offense would say much about the intent of the defendant in the current offense. Nor does a limiting instruction do much to cure the problem. He concluded with the observation that prior convictions should generally be excluded unless the defense suggests that the defendant did not have the requisite intent or knowledge.

Regrettably, both opinions concluded that the conviction, which was six years old, was not remote in time. One wonders if any amount of time will make a conviction too remote for Rule 404(b) purposes.

Forget the Motion--Write the Brief

2006-07-31T14:31:00.000-04:00

United States v. Danny D. Fortner, No. 05-4104 (July 31, 2006): Mr. Fortner appealed his 288-month sentence. Five days before its appellee brief was due, the government filed a motion for summary affirmance, as well as a motion to suspend briefing. Although it did not have all the formal apparatus of a brief, the motion was in substance a brief on the merits. The Court denied this motion and emphatically declared that appellees should not waste everyone’s time with this type of filing. If the appellee thinks the appellant has a weak case, it should say so in an appellee brief.

The Court recognized three instances in which a motion for summary affirmance might be appropriate: (1) when time is of the essence, and the Court can decide the case on the papers; (2) when the opening brief is "incomprehensible or completely insubstantial"; or (3) when a recent appellate decision directly resolves the appeal. But the overall tenor of the Court’s opinion is to discourage such motions.

Calculating Relevant Conduct

2006-07-19T12:36:00.000-04:00

United States v. Karl Bullock, No. 05-2655 (July 18, 2006): Mr. Bullock pleaded guilty to five counts of heroin distribution, which involved a total of 110 grams. The PSR added another 8 kilos of heroin as relevant conduct, and the government requested the addition of 1.5 kilos of crack as still more relevant conduct. These amounts had been alleged in a conspiracy count brought against him, to which he refused to plead guilty and which was later dismissed. With all this relevant conduct, the guidelines range was natural life, but the government recommended a sentence of 30 years. Instead, the district judge imposed a sentence of 100 years, 20 years on each count, with all sentences to be served consecutively. The district judge, although obviously accepting that the 8 kilos of heroin and 1.5 kilos of crack were relevant conduct, made no explanation of how he came to that conclusion.

The Seventh Circuit reversed the finding of relevant conduct. A series of drug sales, without more, are not relevant conduct, and the Court is particularly wary of alleged relevant conduct that is remote in time. The alleged relevant conduct in this case occurred two years before the charged offenses. Although acknowledging that the earlier conduct could be relevant conduct, the Court stressed that the district judge must set out this finding explicitly and may not assume the existence of the relationship. The district judge in this case did not make any findings on this score.

The government asserted that Mr. Bullock (or those working for him) had sold the 8 kilos of heroin. He did not sell the crack, but it was the government’s theory that Mr. Bullock benefitted from the security at the building where he sold heroin and others sold crack. Although the crack dealers' main concern was protecting their crack operation, he was an incidental beneficiary of their efforts, and so crack sales by others should be treated as his relevant conduct. The Court flatly rejected this theory of relevant conduct. Mr. Bullock could be held accountable only for conduct that was directly related to his small sales of heroin two years later.

The Court also ruled that it was error to deny him acceptance of responsibility based on his challenging the government’s claims of relevant conduct.

Although the opinion dealt mostly with the calculation of the guidelines, it also suggested that a sentence of 100 years was unreasonable, even if it would have been within the guidelines. The court noted that defendants in a companion case before another judge (the case with the crack dealers) had received much lower sentences, and a 100-year sentence would seem to create the sort of disparity that section 3553(a) disfavors.

Sentence below Guidelines Found Reasonable

2006-07-10T15:08:00.000-04:00

United States v. Hewlett, No. 05-2532 (July 10, 2006): Mr. Hewlett’s guidelines called for a life sentence. The statutory minimum was 20 years; the maximum, life. The government recommended 30 years in prison; the district court imposed a sentence of 20 years. The government cross appealed on the ground that 20 years was unreasonable.

The panel gave short shrift to this argument. Since the government had asked for 30 years, the Court did not see 20 years as unreasonable. The sentencing judge’s references to Mr. Hewlett’s "redeeming qualities," his "family history," and his age were sufficient explanation of the variance.

In a concurring opinion, Judge Easterbrook noted that the government did not file an information under 21 U.S.C. sec. 851 regarding Mr. Hewlett’s prior convictions, which would have mandated a life sentence. Judge Easterbrook also noted that by statute, 28 U.S.C. sec. 994(h), the district judge should have imposed a sentence at or near life, since Hewlett was a career offender and the current conviction was for a drug offense. A sentence of 20 years did not satisfy this directive. But since the government never made that argument, it had forfeited the point. This discussion emphasizes that Booker does not change the message of 28 U.S.C. sec. 994(h).

Crime of Violence under ACCA

2006-07-10T13:27:00.000-04:00

United States v. Presse D. Matthews, No. 05-1665 (July 7, 2006): Mr. Matthews was sentenced under the Armed Career Criminal Act (ACCA). The government relied on an Illinois conviction for possession of a weapon by a felon. In the state case he had pleaded guilty to carrying a "dangerous knife," with the intent to use it unlawfully against another.

ACCA has two branches: (1) crimes in which an element of the offense is use, attempted use, or threatened use of physical force; or (2) certain enumerated crimes, as well as crimes that present "a serious potential risk of physical injury to another."

Mr. Matthews argued that intended use was not the same as use, attempted use, or threatened use. The Court expressed relief that it could avoid deciding whether the conviction fell under the first branch. Instead, it concluded that the conviction satisfied the second branch.

Matthews argued that a person could have the intent to use a knife to harm another, but might not necessarily carry out the intent or even come close to carrying out the intent. The Court responded that the test is probability, not certainty, of injury. In its view, one who has the intent of using a knife always presents a serious risk of potential physical injury to another.

In rejecting hypothetical scenarios not involving violence, the Court seemed to say that as long as there is a hypothetical scenario that does involve violence, then the offense is categorically a crime of violence. Notice that the inquiry does not focus on the facts of the particular conviction; rather, the Court asks whether it can imagine a situation in which the prohibited conduct has potential for violence. In elaborating on this approach, the Court has demonstrated that it has a fairly active imagination and can deftly conjure up a hypothetical scenario involving violence.

Matthews’ state conviction was under a section that requires bad intent as well as possession of the prohibited item. The bad intent seemed to tip the scales. Another section of the Illinois statute prohibits felons from carrying guns and makes no requirement of bad intent. It remains to be seen whether a conviction under this section can become a predicate conviction under ACCA. Even though the felon has no intent to use the gun against anyone, is there still enough potential for violence that it becomes a violent felony under federal law? Although felons might carry guns because they are on their way to a shooting range or a day of hunting, they might carry them because they are on their way to a robbery. Is the latter hypothetical enough to expose a defendant to ACCA?

One interesting sidenote: the government conceded error. But the Court invited the Attorney General of Illinois to file an amicus brief on the issues of Illinois law involved.

Venue in Illegal Re-Entry Cases

2006-07-06T16:35:00.000-04:00

United States v. Alberto Rodriguez-Rodriguez, No. 05-4786 (July 6, 2006): Mr. Rodriquez was deported back to Mexico. He illegally re-entered in Texas, where he was arrested by state police for speeding. He was then extradited to Wisconsin on a state charge, where he was later turned over to federal authorities. He argued that venue was proper in Texas (which gives fast-track sentences), not in Wisconsin (which does not).

The Court held that a defendant in this type of case is "found" in every district that he or she enters. The alien "makes himself a form of contraband: the offense occurs wherever he is. and in every district through which he passes." The defendant can be prosecuted in each district where he or she is "found."

The Court put to one side the question of when the statute of limitations begins to run for this offense.

As for the second issue, the Court re-iterated that Mr. Rodriquez had no right to a fast track sentence in the Western District of Wisconsin.

Ineffective Assistance of Counsel

2006-06-14T12:48:00.000-04:00

United States v. Timothy W. Spence, No. 05-1848 (June 13, 2006): Mr. Spence was ordered to provide handwriting exemplars and refused. At first, his attorney questioned the validity of the order and requested a stay of the order so that he might research the issue. At the next hearing the attorney conceded the validity of the order and informed the judge that he had so advised his client. Mr. Spence continued to refuse compliance and was charged with contempt.

Mr. Spence eventually plead guilty to contempt (and other offenses). On appeal, he raised a claim of ineffective assistance of counsel, arguing that the attorney’s prior advice caused him to resist compliance. The Court held that the attorney’s later advice removed any claim of ineffective assistance of counsel, since once the attorney told him that he had to comply, Mr. Spence could not blame his plight on the attorney’s advice.

The Court once again reminded the bar that claims of ineffective assistance have almost no chance of success when raised on direct appeal and should be raised in a section 2255 proceeding. This case maintains the Court’s record of never granting relief on direct appeal. Indeed, one wonders why appellate counsel ever embark on this course of action. Of course, it must come from the client’s insisting, but one wonders if the client would insist if he or she knew that this strategy has never worked before and will almost never work in any future case.

One aspect of the case did not receive any comment from the Court, but raises a question. How ethical or wise was it for counsel in the lower court to tell the judge the content of his advice to the client, essentially giving evidence on the question of wilfullness, which could have been an issue had the client gone to trial on the contempt charge. As far as can be told from the opinion, this possible claim of ineffectiveness was not presented on appeal.

Crack-Powder Cocaine Disparity

2006-06-08T11:33:00.000-04:00

United States v. Taryll Miller, No. 05-2978 (June 7, 2006): Under the crack guidelines, Mr. Miller’s sentencing range was 324 to 405 months. The district judge disagreed with the 100-1 ratio, and using a 20-1 ratio, calculated the range as 262 to 327 months. The court sentenced Mr. Miller to 300 months. He challenged that sentence as too high, claiming that the court should have used a 1-1 ratio.

The Seventh Circuit definitively rejected this position. ". . . district judges are obliged to implement the 100-to-1 ratio as long as it remains a part of the statute and the Guidelines." Tightening up on an earlier decision that might be interpreted to allow district judges to ignore the 100-1 ratio, the Court ruled that in all crack cases the sentencing judge must employ the 100-1 ratio. Having done so, a judge remains free to treat the resulting range as advisory. However, a judge’s belief that the 100-1 ratio is unjust or unwise is never a basis for going below the calculated range.

The Court concluded with the comment that, "Miller should give thanks that the United States did not file a cross-appeal." Otherwise, it would have sent the case back and exposed him to a higher punishment.

Earlier in the opinion the Court reaffirmed that hearsay is allowable in a sentencing hearing, although it did allow that district courts should avoid unreliable hearsay. In this case, the hearsay came in the form of testimony given in a separate trial, in which Mr. Miller’s uncle had implicated him in a murder. The Court found it significant that Mr. Miller had not made this transcript part of the record on appeal.

Grouping of Offenses under the Guidelines

2006-06-05T13:55:00.000-04:00

United States v. Michael J. Brisson, No. 05-1540 (June 2, 2006): Mr. Brisson defrauded a bank of a substantial sum of money. He also submitted false claims for IRS refunds, which netted him a substantial sum of money. The district court refused to group the tax counts with the bank fraud count, despite Mr. Brisson's aargument that all the offenses were of the fraud variety and U.S.S.G. sec. 3D1.2 allows grouping. The Seventh Circuit ruled that although this section might seem to permit grouping or at least not disallow it, the true test is whether the offenses are of the same general type. It found that grouping was not required since the victims were different. The opinion is somewhat unclear as to whether it was reviewing the grouping on a de novo basis or merely finding that the district judge did not commit clear error. It is also unstated (perhaps the briefs did not raise the issue) whether the two losses were combined for purposes of calculating relevant conduct.

Post-Argument Submissions

2006-05-24T14:35:00.000-04:00

United States v. Dennis S. Goodwin, No. 05-1809 (May 24, 2006): Have you ever wanted to make a response to the appellee's oral argument, and you had no time left for rebuttal? Sometimes the Court will grant the appellant an extra minute or so, but often this does not happen. This case suggests that the Court may sometimes be receptive to a post-argument submission.

The opinion deals with a Terry stop. In the course of denying relief, the Court mentions that there was some question about the length of time between seizing a piece of luggage and submitting it to the nose of a drug-sniffing dog. The Court notes that the government attorney had estimated the time at 30 minutes, but it could find nothing in the record to support government counsel's assertion. It further notes that the estimate was not contradicted. Then, most significantly, the Court states that the defense attorney had no rebuttal time, "though he could have asked leave to file a supplemental brief or memo." As it turned out, the Court concluded that the exact time was not material.

By holding out this option for appellant's counsel, the Court did not introduce any new procedural device. Yet the remark is a good reminder that in some cases counsel may want to make use of this device. Note, however, the exact context in which the remark was made: the Court had asked a question about the record, and nothing in the briefs seemed to point to the answer. The Court was not inviting counsel as a matter of course to ask leave to file the rebuttal they wish they had made had they not run out of time. Of course, if there are new authorities that arise after oral argument, the Circuit Rule 28(j) letter is available.

Court Supervision as a Conviction

2006-05-24T11:12:00.000-04:00

United States v. Christopher Jones, No. 05-4272 (May 23, 2006): Mr. Jones argued that he should have been eligible for safety-valve treatment, since his previous cases had resulted in court supervision. Having successfully completed the supervision, he was considered under Illinois law not to have a conviction. Reaffirming previous holdings, the Court held that his convictions were still convictions under federal law, despite their treatment under state law.

This case involved the effect of convictions on a mandatory minimum sentence. It would also seem to govern the calculation of criminal history points under the guidelines. Yet when counsel argues for a sentence below the guidelines (which was not an option for Mr. Jones' counsel), he or she can certainly suggest that the criminal history points overstate the criminal history, since the client has successfully completed the supervision.

Notice of Intent to Sentence above the Guidelines

2006-05-17T14:02:00.000-04:00

United States v. Thomas Walker, No. 05-1812 (May 17, 2006): Mr. Walker was sentenced, upon a guillty plea, for stabbing four guards at a federal prison. His guidelines range was 168-210 months in prison. The court sentenced him to 240 months. He argued that under Rule 32(h) he should have received notice of the court's intent to sentence above the guidelines.

The Seventh Circuit held that Rule 32(h) applies only to departures, as defined pre-Booker. The 240-month sentence was not a departure, and so he had no right to notice. The holding is muddied somewhat by the fact that he made no objection below and the Seventh Circuit considered the case under the plain error standard.

The Court's holding is remarkable, since the government, after oral argument, filed a letter under Circuit Rule 28(j) and essentially confessed error on this point, although maintaining that the error was harmless. The Court was unwilling to accept the confession.

The decision may be somewhat short-lived, since an amendment to Rule 32, effective December, 2006, will require the district court to give the sort of notice that Walker says is unnecessary.

Paladino Remand Procedure

2006-05-10T10:35:00.000-04:00

United States v. Michael Spano, Sr. et al., No. 03-1110 (May 9, 2006): The Court sent this case back on a Paladino remand. The district court adhered to the original sentence. The appellants complained that the district judge did not give sufficient attention to the factors found in 18 U.S.C. sec. 3553(a). The Seventh Circuit agreed that the district judge seemed to focus more on the original sentencing than on an analysis of the section 3553 factors. ". . . but this is entirely understandable given the paucity of the defendants' arguments below. . . . The need for a judge to explain in detail his consideration of the . . . factors when choosing to stick with the Guidelines sentence is proportional to the arguments made by the defendants. . . . When the judge is not presented with much, he need not explain much."

As for the reasonableness assessment by the Seventh Circuit, it found that the appellants had not done any better in bringing detailed reasons to the Court's attention on further review.

Immigration Fraud through Marriage

2006-05-04T11:00:00.000-04:00

United States v. Anouar Darif, No. 05-3377 (May 3, 2006): Mr. Darif was convicted of marriage fraud in violation of 8 U.S.C. sec. 1325(c). He arranged for a propsective wife to come to Morocco and marry him. He paid her $3,000. When he later arrived in the United States, they lived together for several months. They filed joint tax returns and opened a joint bank account. After a while, he took a job as a long distance truck driver and did not live in the same house with her. She testified that the marriage was never consummated. There was also evidence of his having an extramarital affair.

The district court instructed on the elements of the offense as follows:

First, that the defendant knowingly entered into a marriage with Dianna Kirklin;
Second, that the defendant knowingly entered into a marriage for the purpose of evading any provision of the immigration laws;
Third, the defendant knew or had reason to know that his conduct was unlawful.

Mr. Darif requested the following additional instructions, all of which were refused:

1. [To be guilty of the offense] . . . at the time of the marriage, Anouar Darif did not have the intent to establish a life with Dianna Kirklin.
2. Marriage fraud may be committed by one party to the marriage, or a person who arranged the marriage, yet the other spouse may genuinely intend to marry. If one spouse intended the marriage to be fraudulent, when the ceremony took place, but the other spouse intended it to be genuine, then the one committed marriage fraud but not the other.
3. The marriage is legitimate so long as Anouar Darif intended to establish a life with his spouse at the time he married her, even if securing an immigration benefit was one of the factors that led him to marry her.
4. A marriage between a foreign person and a United States citizen is not required to be more conventional, or successful, than a marriage between U.S. citizens.

His basic position was that there was an actual marriage, despite his poor motive for entering the marriage. Although the government seemed to have some evidence that the marriage was a sham, he wanted to argue that his intent to marry was genuine.

The Seventh Circuit found requests 1 and 3 to be mistatements of the law, 2 to be covered by the district judge's instructions, and 4 "simply irrelevant."

Although the Court stated that 1 and 3 were mistatements under its precedents, it cited no Circuit case law in support of that proposition. Although it cited cases from the Eighth and Ninth Circuits, it did not acknowledge that they supported Mr. Darif's position, especially United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir. 1996). As Tagalicud pointed out, referencing the Book of Genesis, a marriage is no less a marriage even though one or both the parties may have motives that are less than pure.

It is not stated that Mr. Darif made any challenge to the court's instructions. One wonders how an instruction that allows liability for what Mr. Darif "had reason to know" satisfies a criminal intent requirement.

Hearsay in Supervised Release Revocation

2006-05-02T15:08:00.000-04:00

United States v. Lamond D. Kelley, No. 05-1884 (May 2, 2006): Mr. Kelley's supervised release was revoked. At the revocation hearing, a police officer testified that two complainants told him that Mr. Kelley had assaulted them with fists and had threatened them with a gun. The officer received Mr. Kelley's permission to search the trunk of his car, where he found a gun.

The Court rejected the argument that Crawford v. Washington, 541 U.S. 36 (2004) bars hearsay at a revocation hearing. Reasoning that such hearings are not criminal prosecutions for Sixth Amendment purposes, it refused to extend Crawford beyond the trial setting.

The Court acknowledged that under the due process clause of the Fifth Amendment there is a right to confront unless the judge specifically finds good cause for not allowing confrontation. In this case, the district judge apparently accepted the government's view that hearsay is always allowed at revocation hearings. In that regard, the district judge was found to have erred.

But the Court approved the admission of the hearsay. In the Seventh Circuit, good cause can be satisfied if the hearsay is found reliable. The testimony about the out-of-court statements by the complainants was deemed reliable, since the officer did find a gun, corroborating a big piece of their story. Finding this gun also made any error harmless.

Mr. Kelley also advanced the arguments that (1) Circuit law erroneously equates reliability with good cause and (2) when a court finds good cause, it should make findings on the record. The Court found that these arguments were insufficiently developed to merit consideration, although it did opine that "ideally" the district judge should have made such findings. (Of course, the district judge never made such findings, since he was seriously misinformed about the law.)

Review of Below Guidelines Sentence

2006-05-01T10:29:00.000-04:00

United States v. John B. Baker, No. 05-2499 (April 28, 2006): Mr. Baker entered a plea of guilty to distribution of child pornography. His advisory guidelines range was 108 to 135 months. The district court rejected a defense plea for a sentence of 60 months and sentenced him to an 87-month term of imprisonment. The government appealed the sentence.

The government did not contend that the sentence was unreasonable. Instead, it argued that the district court did not adequately explain its below-guidelines sentence. The district judge's written explanation was brief. "There is no evidence in the record to indicate that the defendant has acted out against any child. The sentence of 87 months is sufficient, but not greater than necessary to comply with sentencing purpose [sic]."

The Seventh Circuit held that it could consider the oral explanation as well as the written explanation. It then found the explanation, written and oral portions taken together, sufficient to justify the sentence. The district court paid close attention to Mr. Baker's lack of criminal history, his age, his religious background, and his work history. The Seventh Circuit quoted at length the district court's recognition that Congress regards child pornography as a serious problem. The Court also stressed that the district judge imposed a life term of supervised release.

A Narrow Question of Anders Procedure

2006-04-20T12:38:00.000-04:00

United States v. William Eskridge, No. 05-2808 (April 19, 2006): This case occupies an incredibly small piece of the legal landscape, but could lead to some difficulties down the road. Mr. Eskridge appealed revocation of his supervised release, arguing that the prison sentence imposed upon the revocation exceeded the statutory maximum available to the judge. His appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit decided that his case raised an issue that was not only non-frivolous, but meritorious. It vacated and remanded for further proceedings. It denied counsel’s request to withdraw and sent the case back to the district court for re-sentencing.

Normally, if appointed counsel files a compliant Anders brief, and the Court decides that there are non-frivolous issues, it appoints new counsel to brief those issues, receives a brief from the government, and then decides the case, either affirming or granting relief. In this case, the Court studied the record and granted relief without hearing from the government. Given the facts of the case (which are so detailed and so unique that it would serve no purpose to recite them here), the Court could not be faulted if it had merely explained that in order to appraise the Anders brief, it had put in enough work to know the correct outcome and did not need to trigger a new round of defense briefing and government reply, all performed while Mr. Eskridge served out a sentence short enough that his ultimate victory would be rendered academic.

But the Court did not take that approach. Instead, it reasoned that Mr. Eskridge, although he had a statutory right to appointed counsel, did not have a constitutional right to appointed counsel. It held that in supervised release revocations the prisoner has a constitutional right to appointed counsel only when he or she claims there was no violation of the conditions of supervised release or, if there was a violation, special conditions make revocation inappropriate. Mr. Eskridge was denying neither a violation nor the appropriateness of revocation. He argued solely that the prison term was in excess of the statutory maximum. Thus, under this construct, his right to counsel was purely statutory.

What does it mean to have a statutory, but not a constitutional right to appointed counsel? 18 U.S.C. sec. 3006A gives all defendants in federal criminal cases the right to appointed counsel on appeal, even in supervised release cases. There is no exception in the statute for frivolous appeals, and one might question whether the Anders doctrine, which originated in a state prisoner case, and was then refined in state probation revocation cases, has any application to federal prisoner cases so long as section 3006A remains in force. Certainly, the statute establishes no procedure regarding frivolous appeals.

If counsel wants to withdraw, may counsel file a conclusory statement far short of an Anders brief? It is hard to believe the Court wants to sanction that practice, since the Court would then have to do the work that counsel does when filing an Anders brief. If counsel must file an Anders brief, how does the Court proceed upon finding that there is indeed a non-frivolous issue? Will it seek a government brief, especially if it believes that there may be an issue, but cannot resolve it as decisively as it did in Mr. Eskridge’s case? Remember that these questions about procedure will arise only in this small slice of cases, as well as in probation revocations.(The opinion suggests in a very indirect way that this approach could also apply to actions under 28 U.S.C. sec. 2255, but the relatively recent requirement of a certificate of appealability would seem to winnow out at any earlier stage those appeals with no perceived merit).

Sawed-Off Shotguns

2006-04-14T12:42:00.000-04:00

United States v. Modina Lim, No. 05-2419 (April 14, 2006): Mr. Lim entered a conditional plea to possession of an unregistered sawed-off shotgun (26 U.S.C. sec. 5861(d)). He had several constitutional challenges to the statute. The Court easily rejected the claim that the offense was beyond Congress' power to tax, just as it rejected the claim that the registration requirement ran afoul of the self-incrimination clause of the Fifth Amendment.

More interesting is the claim that the statute is vague. Section 5845(a)(2) of Title 26 defines a sawed-off shotgun as a shotgun with an overall length of less than 26 inches or a barrel of less than 18 inches. Mr. Lim complained that the statute provides no definition of "barrel" and no statutory direction on how to measure a barrel. The Court relied heavily on United States v. Powell, 423 U.S. 87 (1975), which held there was nothing vague about proscribing the mailing of a firearm "capable of being concealed on the person." Presumably, if a statute as vague as this can pass muster, almost anything else will pass. However, the Court did not comment on the key difference between the statute in Powell and the statute in Mr. Lim's case. The offense in Powell requires knowledge, but the offense in the instant case does not. The Court also pointed to a regulation, 27 C.F.R. sec. 479.11, that sets out a protocol for measuring barrels and the over-all lenghts of guns. The Court held that a regulation can save a statute from being vague. The Court did not quote the language of this regulation. Had it done so, it might have seriously undermined its argument. The regulation may make some sense to someone who knows about guns, but it is not enlightening to others. It is generally agreed that a statute must be intelligible to the public at large, not a special segment of the public. The same should hold true for regulations that are offered to fend off claims of statutory vagueness.

Proposed Change for Unpublished Opinions

2006-04-13T11:30:00.000-04:00

The Supreme Court has approved new Federal Rule of Appellate Procedure 32.1, which will take effect in December, 2006, unless Congress disapproves. Under the new rule, parties may cite unpublished opinions and orders of any federal court. This new rule will apply only to orders and opinions that have been issued after January 1, 2007. The Committee Note advises that the rule does not require a court to issue unpublished opinions, which could leave open the unattractive possibility of dispositions that contain nothing more than the word "AFFIRMED." (Other Circuits have employed this practice in the past.) The Committee Note also advises that each Court can decide what precedential weight to give unpublished opionions. For the answer to that question, we must await a local Circuit Rule.

"Fast Track" Departures

2006-04-10T13:50:00.000-04:00

United States v. Alejandro Galicia-Cardenas, No. 05-3093 (March 24, 2006): This opinion consolidates two appeals. It was originally an unpublished order, but the Court has now published it at the government's request.

Mr. Galicia-Cardenas, prosecuted in the Eastern District of Wisconsin, received a below guidelines sentence for his illegal re-entry offense. Mr. Vega-Lopez, prosecuted in the Western District of Wisconsin, received a within the guidelines sentence for the same offense. In both cases the question was whether the "fast track" program operating in other districts could be the basis of a below the guidelines sentence. The Seventh Circuit answered "no" to this question. Since Congress has authorized the Attorney General to create the program, there can be no unwarranted disparity in allowing lower sentences for defendants in some districts. As might be expected, there is little analysis in this formerly unpublished opinion, other than a reference to the Court's recently published opinion in United States v. Martinez-Martinez, 2006 WL 722140 (7th Cir. March 23, 2006). Martinez held that a court was not required to go below the guidelines to equalize defendants who are sentenced in non-fast track districts. The instant case takes us to a new level in holding that a district court errs when it uses fast track to exercise discretion and sentences below the guidelines. The instant case does not acknowledge that in some districts defendants receive lower sentences because of charge bargaining. It remains to be seen what the Court will say when it confronts that issue.

Sentencing Disparity between Co-Defendants

2006-04-07T15:40:00.000-04:00

United States v. Pisman, No. 05-1625 (April 7, 2006): Wilkerson and Pisman were indicted for interstate travel sex offenses. Wilkerson made a deal with the government and testified against Pisman. The guidelines range for these offenses was 108-135 months. Wilkerson received a sentence of 68 months in return for his co-operation. At Pisman's sentencing the district court viewed Wilkerson as more culpable and sentenced Pisman to 60 months. The court believed that, in order to avoid unwarranted disparity, any sentence of Pisman should reflect Wilkerson's greater culpability. Had Wilkerson received a harsher sentence, the court would have imposed a harsher sentence on Pisman. The Seventh Circuit remanded for re-sentencing. Although it held open the possibility that a 60-month sentence might still pass muster, it disapproved the district court's rationale of avoiding unwarranted disparity. A reward to Wilkerson for his co-operation would not create unwarranted disparity.

The opinion also contains a discussion of the inconsistent verdict rule. Pisman was acquitted of two counts, but convicted of the third count. Although these verdicts were logically inconsistent, Pisman could receive no relief, since inconsistency is not a basis for setting aside the guilty verdict.

Aiding and Abetting Use of a Gun

2006-04-03T16:30:00.000-04:00

United States v. Todd Andrews, No. 05-1974 (March 30, 2006): Mr. Andrews was convicted of bank robbery and use of a firearm during a crime of violence. Both convictions rested on a theory of aiding and abetting. By his own statements to law enforcement, he agreed to loan his auto and his shoes to the robbers, knowing they were planning to rob a credit union (the opinion does not reveal why there was a need to borrow his shoes). He also knew that the robbers had guns. Other than loaning these two items to the robbers, he did not participate in the robbery. He argued that the district court should have granted his Rule 29 motion on the gun count.

The Court acknowledged that a defendant must intentionally facilitate the possession of the weapon; merely aiding a crime and knowing that the principal has a gun is not enough to aid the use of a firearm. In upholding the conviction, the Court emphasized Mr. Andrews' knowledge that the robbers had guns, yet it presented little analysis of what he did to facilitate their use of the guns.

Enhancement for Firearm Possessed "In Connection with" Another Offense

2006-04-03T14:58:00.000-04:00

United States v. Markovitch, No. 05-3296 (April 3, 2006): Mr. Markovitch pleaded guilty to possession of a firearm by a felon. At sentencing he received a 4-level enhancement under 2K2.1(b)(5) for possessing the firearm in connection with another felony offense, that is, possession of controlled substances with intent to distribute. At the time of his arrest for a DUI offense, he was found in possession of 4 grams of cocaine, 5.5 grams of marijuana, and a small scale, in addition to the firearm. His argued that he was a user, not a dealer, and that he carried the scale to make sure that when he purchased for his personal consumption, he was not cheated. Employing the clearly erroneous standard, the Court affirmed the finding that he was a dealer and that his possession of the gun "facilitated or potentially facilitated" the offense of possession with intent to distribute. Since there was no evidence that he was actually distributing drugs or attempting to distribute drugs at or near the time of his arrest, the Court's holding was based more on the expanded definition of facilitation it found in cases from other Circuits: the possession of the gun "had some potentially emboldening role" in drug distribution. In finding that he was a dealer, the Court relied on the presence of the cocaine and did not consider the marijuana. It also relied on the presence of the scale and on a previous conviction for distribution.

Booker and the Ex Post Facto Clause

2005-07-20T15:18:00.000-05:00

United States v. Shawndale L. Jamison, No. 05-1045 (July 20, 2005): At his plea, Mr. Jamison admitted to a small quantity of drugs, but at sentencing he disputed the larger amount of drugs put forward by the probation officer as relevant conduct. The district court did not grant Mr. Jamison a jury trial on this issue, but accepted the probation officer’s calculation of the weight of the drugs and imposed the sentence that this weight of drugs would produce under the guidelines. It justified this result by claining that it was treating the guidelines as advisory. (The Seventh Circuit’s opinion is not very clear as to the facts, but it appears from the docket sheet that the sentencing in this case took place after the Circuit opinion in Booker, but before the Supreme Court’s opinion.) This "advisory" use of the guidelines does not seem to have been the sort of advisory use later set forth in the Booker remedial opinion. Rather, the judge seems to have calculated the guidelines, not giving the defendant any Booker protections, and then imposed a sentence consistent with the guidelines, but in no way guided by the section 3553(a) factors.

Booker has made the guidelines advisory in a much different sense. Mr. Jamison could have sought relief on that basis, but that would have only put him back before a judge who was determined to give him a high sentence. Instead, Mr. Jamison argued that, since he committed his crime before the Supreme Court’s decision in Booker, he was entitled to be sentenced under mandatory guidelines. He further insisted that, in applying the guidelines, the judge should have granted him the constitutional rights established by the Booker merits opinion. It was, he claimed, a denial of due process and a violation of the ex post facto clause to base a sentence on advisory guidelines.

In a brief opinion, the Court ruled that Mr. Jamison had fair notice that dealing drugs was a crime and fair notice that he could face up to 20 years in prison. Although Booker certainly changed his exposure to punishment, it did not create a crime where none had existed and did not increase the maximum sentence. Receiving a sentence higher than an unadjusted guidelines sentence denied him neither due process nor the protection of the ex post facto clause. The Court joined the Fifth and the Eleventh Circuits in rejecting his argument. The Court did not give serious consideration to the argument that Booker certainly affected this defendant’s maximum sentence in this case. For the weight of drugs that he acknowledged were involved, the maximum sentence was proscribed by the guidelines and could go higher only if a jury found beyond a reasonable doubt that a higher amount was involved. In slighting this argument, the Court ignored the key teaching of Blakely and of Booker.

Jamison’s case raises still another question about the meaning of Booker that only the Supreme Court can definitively resolve. This issue was never presented to the Booker Court, probably since the Booker Court(s) took the case in such an unpredictable direction. Until the Supreme Court takes up this issue, counsel should be preserving it in cases where it could make a difference, i.e., cases where the government is seeking extensive enhancements that drive the advisory guidelines upward.

Hearsay in Sentencing; Looming Ex Post Facto Issue on Choice of “Book”

2005-07-14T12:51:00.000-05:00

United States v. Devon Roche, No. 04-1475 (July 11, 2005): The Court concluded that the confrontation clause, as most recently discussed in Crawford v. Washington, has no place at sentencing. When the government introduces hearsay at sentencing, the only limits are found in the due process clause and in the guidelines requirement that the information have "sufficient indicia of reliability to support its probable accuracy." U.S.S.G. sec. 6A1.3(a).

Mr. Roche also raised the argument that the district court had used the wrong edition of the guidelines, in violation of the ex post facto clause. In dictum, the Court stated, "It is doubtful that the ex post facto clause plays any role after Booker. . . [T]he Court in Booker demoted the Guidelines from rules to advice." The Court then quickly remarked that it did not need to resolve what effect Booker has on the ex post facto analysis, since it did not believe that the newer edition of the guidelines changed the calculations to Mr. Roche’s disadvantage.

Correcting a Sentence under Rule 35(a)

2005-07-14T11:30:00.000-05:00

United States v. Lloyd Baldwin, No. 03-3721 (July 12, 2005): The district court calculated Mr. Baldwin’s guidelines and sentenced him to 78 months on each of four counts, the sentences to run concurrently. After sentencing, the court realized that the maximum sentence on each count was 60 months. It then amended the judgment to impose 60 months on one count and 18 months on the other counts, the 18 months consecutive to the 60 months. Under Federal Rule of Criminal Procedure 35(a), the court has seven days after the pronouncement of sentence to correct "clear error." Because the court acted outside this deadline, the amendment to the judgment was ineffective, and the Court remanded to correct the original sentence, which was illegal.

Two points about Rule 35(a) bear noting: the 7-day period begins to run from the date when sentence is pronounced, not when it is entered on the docket. The Seventh Circuit, in conflict with other Circuits, had previously used the date of docketing as the trigger for the Rule 35(a) remedy, but Rule 35(a) was amended in 2004 to disapprove the Seventh Circuit reading. Second, the judge must act within the 7-day period. It is not enough to file the motion within the 7-day period. Counsel must insure that a timely motion is ruled on in a timely fashion.

Bye, Bye, Booker

2005-07-08T12:32:00.000-05:00

United States v. Mykytiuk, No. 04-1196 (July 7, 2005): On a Paladino remand, the district judge indicated that his original 150-month sentence would remain the same, notwithstanding Booker. This sentence was within the guidelines. The Seventh Circuit then examined this sentence for its reasonableness.

The Court acknowledged that it could not, consistent with Booker, presume that a guidelines sentence was always reasonable. Yet it did not wish to jettison the work of the Sentencing Commission. "The best way to express the new balance . . . is to acknowledge that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness." Continuing, "This is a deferential standard. . . The defendant can rebut this presumption only by demonstrating that his or her sentence is unreasonable as measured against the factors set forth in section 3553(a). . . . While we fully expect that it will a rare Guidelines sentence that is unreasonable the [Supreme] Court’s charge that we measure each defendant’s sentence against . . . section 3553(a) requires the door to be left open for this possibility."

United States v. Lavell Dean, No. 04-3172 (July 7, 2005): This opinion, issued the same day as Mykytiuk, offers much the same message, but also suggests some possibilities for defense counsel to consider.

The defendant was sentenced after the Seventh Circuit opinion in Booker but before the Supreme Court’s opinion. The district judge raised the base offense level on the basis of allegations that a gun was involved and that the gun was stolen. The judge then considered the actual sentence in light of various aspects of the defendant’s background.

The Seventh Circuit found error in the district judge’s making guidelines calculations on the basis of allegations in the PSR. If there is a dispute about facts, the defendant must be given the chance to present testimony.

But the defendant’s major contention was that the judge did not fully consider the sec. 3553(a) factors. The Court rejected the argument that the judge must consider all the 3553(a) factors, even those not invoked by the defendant in a particular case. But in rejecting this argument, the Court seems to have gone a little further. Relying on its remarks in United States v. George, 403 F.3d 470 (7th Cir. 2005), the Court emphasized that ". . . it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less." The judge’s duty to consider the factors set forth in sec. 3553(a) is not a duty to make and put on the record findings as to those factors.

The Court immediately qualified this last statement. "Explicit factfinding is required . . . if . . . contested facts are material to the judge’s decision. A judge who thinks that a particular contested characteristic of a defendant may be decisive to the choice of sentence, such as the defendant’s mental or emotional state, must resolve the factual issue in the usual way, that is, by making findings on the basis of evidence . . ."

This qualification comes with its own qualification: "This does not mean trial by jury, proof beyond a reasonable doubt, . . . evidence that satisfies . . . the Federal Rules of Evidence, or any other such formalities."

There is a further cross-current in the opinion. After repeating that the judge need give little explanation for imposing a sentence within the guidelines, the Court stated, "But the defendant must be given an opportunity to draw the judge's attention to any factor listed in section 3553(a) that might warrant a sentence different from the guidelines sentence. . ." This would seem to mean that if a judge imposes a sentence with no explanation or a formulaic explanation, counsel should attempt to draw the court out into making an explanation. Even though these decisions might suggest that the judge need give no explanation for a guidelines sentence, the judge may find it difficult, when pressed, to hide behind ". . . because I say so."

All in all, these two decisions do much to unravel Booker. If a sentence within the guidelines is rebuttably presumed to be reasonable, then the difference between advisory guidelines and mandatory guidelines is razor-thin. The Seventh Circuit says that the presumption is rebuttable, but how can the defendant rebut the presumption if the judge is not obliged to give reasons for the sentence imposed? In essence, the district judge can say, "Trust me, I’ve given this a lot of thought, and a guidelines sentence of 360 months is reasonable." The courts (and litigants) would never accept that a judge could resolve a civil suit with a general finding as to liability or damages. It is a mystery why criminal defendants must accept this level of justice. Circuit Rule 50 does not distinguish between criminal and civil cases. There is a suggestion in Dean that a full statement of reasons would be more work for the judges, but this can hardly be a legitimate rationale for the Court’s holding. In civil cases judges make written findings of fact and conclusions of law that go on for many pages. Is a dispute over a sale of widgets more important than the decision where someone will spend the next few years of his or her life? Until the Supreme Court explicitly approves this type of approach, counsel should continue to make a record, file appeals, and seek certiorari. You can be sure that if the Supreme Court disapproves this practice, those counsel who did not press the issue will be met with the retort, "You didn't preserve the issue."

Apprendi and the Use of Special Verdicts

2005-07-06T12:08:00.000-05:00

United States v. Lissett Rivera, No. 02-3238 (June 16, 2005): Section 841 of Title 21, U.S. Code, ties both minimum and maximum mandatory penalties to specified amounts of drugs. The greater the quantity, the higher the penalties.

Lissett Rivera was charged with a conspiracy that had two objectives: distribution of five or more kilograms of cocaine, and distribution of 50 grams or more of cocaine base. Under the statute, these amounts trigger the highest mandatory sentences.

The jury was presented with a special verdict form. If it found the defendants guilty, it had to specify whether the conspiracy involved less than 500 grams of cocaine, more than 500 grams but less than five kilos, or five or more kilos. There was a similar interrogatory regarding cocaine base. These interrogatories dealt with the overall amounts of drugs and said nothing about any one defendant’s agreement to any particular amount of drugs.

The jury convicted and found that the conspiracy involved five or more kilos of cocaine and 50 grams or more of cocaine base.

At sentencing, the district court found that Ms. Rivera had agreed to only three kilos of cocaine, which exposed her to a mandatory minimum of five years in prison. Employing the sentencing guidelines, the district court sentenced her to 97 months in prison. Ms. Rivera appealed the district court’s guidelines calculations (minor role and use of a gun), but did not appeal the finding as to three kilos. With the Supreme Court’s decision in Booker intervening, she asked for a limited remand under the authority of Paladino. The government did not file a cross appeal.

The Seventh Circuit refused a Paladino remand. As it saw the matter, she should have received at least ten years in prison, and a Paladino remand could do her no good. According to the Court, once the jury made its finding that the conspiracy involved five or more kilos of cocaine, Ms. Rivera was subject to a ten-year mandatory minimum. After Apprendi, a district court cannot make findings that conflict with the jury's findings. The Court helpfully offered the observation that Ms. Rivera could have avoided exposure to a ten-year sentence if she had argued to the jury that her agreement was as to a lesser amount of drugs, which "might have led the prosecutor to request a lesser-included-offense instruction. . ."

This analysis sounds reasonable, except for one troubling fact found in the record, but not acknowledged in the Court’s opinion. Ms. Rivera had asked for the district court to pose an additional special interrogatory that would have called for a jury finding as to the amounts of drugs to which she had agreed. This request was rejected, since the district court mistakenly believed that only it could make that finding. So Ms. Rivera had tried to do exactly what the Seventh Circuit had suggested, but, despite her best efforts, the jury had never made a finding that she had agreed to a conspiracy involving five or more kilos.

Putting aside the result as it affected Ms. Rivera, it is clear that in future cases counsel must be keen to obtain jury findings that place limits on their clients’ involvement in a conspiracy. Although the Court’s opinion refers to the possibility of the government’s seeking a lesser included offense instruction, defense counsel may want to seek such an instruction. (Consider the alternative: "Acquit my client and turn her loose, because she agreed to only three kilos, not five kilos, as charged in the indictment." Not very attractive.)

Findings of Fact in Sentencing

2005-05-05T22:53:00.000-05:00

United States v. Ruben Arroyo, Case No. 03-3113 (05/05/2005): May the judge rely on the findings of fact in the PSI? This opinion contains a good review of the pertinent case law, which allows the judge to adopt, even implicitly, the facts stated in the PSI as long as they are completely and coherently stated. Unfortunately, the defendant in this case did not object to the district court’s reliance on a PSI that was less than informative, and the Court found the PSI adequate enough to withstand plain error analysis.

Counsel should be thinking about two broader questions, which, given the procedural posture of this case, the Court did not consider. When the judge merely states a conclusory fact, e.g., more than 500 grams of cocaine as relevant conduct, is it satisfactory that the PSI has a complete and coherent explanation of the facts leading to this conclusion? The cases allow the reviewing court to assume that the district judge relied on the PSI. For such an important matter, it is not too much to ask that the judge explicitly rely on the PSI. Circuit Rule 50 requires the judge to provide a statement of reasons; assuming that someone else’s reasons are the judge’s reasons is a hollow substitute.

Second, after Blakely, Booker, and Crawford, is there any room for a procedure in which certain facts are set forth in the PSI, and the defendant must then challenge those facts in order to put them into play? The PSI often merely parrots the government’s version of the offense, which is merely a set of allegations, sometimes of very dubious merit. The current rule waters down and shifts the burden of proof.

The Perils of a Full Booker Remand

2005-05-05T22:50:00.000-05:00

United States v. Jeffrey L. Goldberg, Case No. 03-3955 (05/05/2005): The Court took pains to warn the defense bar of the perils of a full Booker remand. Counsel at oral argument expressed the view that on a full remand the district court could not impose a sentence any higher than the original sentence. Counsel relied on the line of cases involving vindictive resentencing. The Court cautioned that those cases were not apposite. Since a full remand would involve a sentencing under a different regime, that of advisory guidelines, a district court could give a higher sentence without necessarily being vindictive. Mr. Goldberg received a Paladino remand.

Possession of a Firearm in Furtherance of a Drug Crime

2005-05-05T22:45:00.000-05:00

United States v. Pedro L. Castillo, Case No. 02-3584 (05/03/2005): In its first major statement on the amended version of 18 U.S.C. §924(c)(1)(A), the Court stressed that the mere presence of a weapon at the scene of a drug crime, without more, is insufficient to prove that the gun was possessed "in furtherance of" a drug crime. There must be proof that the charged weapon did something to promote the charged drug offense. The opinion contains a lengthy analysis of the legislative history and cases from other Circuits. The Court ultimately found that the government presented enough evidence to satisfy its burden.

Mr. Castillo also argued that the instructions on the in furtherance element were insufficient. The Court found that his objections to the instructions were not properly preserved; hence, it reviewed under a plain error standard. In performing this plain error analysis, the Court made two points that would have much less weight in a case where proper objection had been made. First, it suggested that correct statements of the law contained in the parties’ final arguments were sufficient guidance for the jury. Normally, an incomplete statement of the law is not rehabilitated by the arguments of counsel. The judge, not the attorneys, instruct on the law. Second, the Court observed that "in furtherance of" is not so special a term that a jury needs instruction. Given the Court’s lengthy and learned analysis of the statute, it seems very unrealistic to think that the average high school graduate will know the meaning of the phrase without help from the district judge’s instructions. The Court even acknowledged that it would be preferable for the instructions to define this element.

Shepard and Almendarez-Torres Reconciled

2005-05-05T22:42:00.000-05:00

United States v. Tek Ngo, Case No. 04-2662 (05/05/2005): Mr. Ngo was declared a career offender on the basis of two armed robbery convictions. He maintained that the two convictions should be counted as only one. The district judge made a finding that the two convictions were not related. The Court held that only a jury could make that finding. Almendarez-Torres allows a judge to find the fact of conviction. But if there is a question beyond the fact of conviction, such as the relatedness of one conviction to another, then Shepard gives the defendant a right to jury trial, unless a court record establishes the facts in dispute or the defendant admits the facts in dispute. In Mr. Ngo’s case, the question arose in the context of a guideline calculation, but the Seventh Circuit pointedly noted that its reading of Shepard would equally apply to non-guidelines situations.

The Hobbs Act and Bank Robbery; Paladino Remand

2005-04-29T13:15:00.000-05:00

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

2005-04-13T10:35:00.000-05:00

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

2005-04-13T10:31:00.000-05:00

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

2005-04-13T09:38:00.000-05:00

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

2005-04-07T15:16:00.000-05:00

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

2005-04-04T11:58:00.000-05:00

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).

Prior Convictions - - Questions of Fact and Questions of Law

2005-03-24T16:57:00.000-05:00

United States v. Freddy Rosas, Case No. 04-2929 (03/24/2005): The defendant was sentenced as a career offender. In doing so, the district court relied on a prior Wisconsin conviction for fleeing a police officer. The Court held that fleeing was a "crime of violence," since it "otherwise involves conduct that presents a serious potential risk of physical injury to another." The defendant acknowledged the vitality of Almendarez-Torres, but argued that he had a right to a jury trial on the nature of the offense, even though he had a no jury trial right as to the existence of the conviction. The Court held that the issue is one of law, not fact; hence, no right to jury trial.

It is true that a prior decision by the Court has declared that any and all violations of the Wisconsin flight statute are crimes of violence, but this ruling is not easily squared with Shepard v. United States, 544 U.S. ___ (2005), which was decided after Rosas was argued, but is not discussed by the Rosas Court. One can violate the Wisconsin statute by engaging in extremely risky conduct, but one can also violate it with conduct that poses minimal risks to anyone. If the government in Shepard had to prove that the defendant was convicted of the sort of burglary that triggered enhanced penalties, the government in Rosas should have been required to prove that the defendant was convicted of the sort of flight that posed a serious risk. Moreover, the Court has seized on a false dichotomy. The nature of the offense is a mixed question of law and fact, which, under Booker, should call into play the right to jury trial.

The Court upheld the calculation of the guidelines, but it said nothing about how this case should be resolved now that the guidelines are merely advisory.

Theft from a City Receiving Federal Funds

2005-03-24T16:53:00.000-05:00

United States v. Michael Spano, Sr. et al, Case No. 03-1110 (03/24/2005): The defendants were convicted of violating 18 U.S.C. §666, which prohibits theft from an organization receiving federal funds, as well as bribery of officials of organizations receiving federal funds. The defendants argued that there had to be some nexus between the stolen funds (or bribes) and the federal grants. In Sabri v. United States, 124 S. Ct. 1941 (2004), the Supreme Court had held the statute constitutional on its face, and the Seventh Circuit relied on Sabri to hold that there was no nexus requirement.

Hobbs Act and Depletion of Assets

2005-03-24T16:46:00.000-05:00

United States v. Randall Re and Anthony Calabrese, Case No. 03-2089 (03/22/2005): One of the defendants, Re, owned a warehouse next door to a warehouse owned by Leach. Re thought he had a buyer for his warehouse, but the prospective buyer, Daughtry, decided to lease from Leach rather than buy from Re. A thug so intimidated Daughtry that he backed away from the lease. The Court upheld a jury verdict finding that Re was behind the intimidation. The next question was whether there was enough effect on interstate commerce to ground this prosecution under the Hobbs Act. The Court found that there was barely enough evidence on interstate commerce.

The prosecution relied on the depletion of assets theory. "Under this theory, commerce is affected when an enterprise which customarily purchases items in interstate commerce has its assets depleted through extortion, which in turn limits the victim-enterprise’s potential as a purchaser of goods." The government argued that Daughtry was dissuaded from the lease, which meant that Leach had less money to pay expenses associated with the warehouse. It was a further part of the government’s argument that the Leach used out-of-state paint, tools (most notably, a weed-eater), and gasoline for these tools as part of his efforts to maintain the warehouse. The Court stressed that any out-of-state purchases must be made by the victim enterprise and they must be made customarily. The Court noted that the government never presented any direct evidence that these items had ever traveled in interstate commerce. Nor did it establish that any of these goods were customarily purchased. (For example, the purchase of a weed-eater 20 years ago would not establish that it was a customary purchase.) Nor did the government establish that these purchases were made by the business, as opposed to the owner of the business. Nonetheless, the Court held that a jury could legitimately infer that all these items had been customarily purchased by the business from out-of-state sources.

The Court gave no explanation for this conclusion. Is the Court saying that all common items can always be inferred to have traveled in interstate commerce? Perhaps it is true that there is nothing in today’s world that is entirely intrastate in a factual sense. But then is the jurisdictional component of interstate commerce a meaningful limitation? One would be hard pressed to conjure up a case in which the Court will not find that the jury had enough, just barely enough, evidence to conclude that there had been a depletion of assets.

This case is also troublesome for what the Court did not say. In this case there was no robbery or extortion, a core requirement of the Hobbs Act. The opinion assumes that violence not amounting to robbery or extortion can be the basis of a Hobbs Act prosecution, a difficult legal proposition noted but not resolved earlier this year in the Court’s opinion in National Organization for Women, Inc. v. Joseph M. Scheidler, Case No. 99-3076 (01/28/2005). (The NOW case was the subject of an earlier posting.) It cannot be told from the Re opinion whether this issue was raised by the parties, and of course the Court cannot be faulted for failing to take on a difficult issue not raised by the parties.

Perhaps more questionable is the assumption that violence could be directed at Daughtry and the depletion of assets could be felt by Leach. The depletion of assets theory is very broad, especially as administered in this case, but it becomes inconsequential, if not a fiction, when the victim of the violence and the victim of the depletion are different parties.

Some Nuts and Bolts of Appellate Practice

2005-03-04T12:54:00.000-05:00

United States v. Mario Howard Lloyd, Case No. 03-3334 (03/01/2005): The Court stated its strong disapproval of a litigation strategy that has become too common. Instead of filing its appellee brief, the government filed a motion to dismiss the appeal for lack of appellate jurisdiction.

If an appellee has genuine doubts as to appellate jurisdiction, it should, pursuant to Circuit Rule 3(c)(1), file a counter docketing statement within 14 days after the appellant files the initial docketing statement. In addition, the appellee’s responsive brief must, if warranted, challenge the appellant’s jurisdictional statement, and the appellee may file a motion to dismiss along with its responsive brief. But a motion to dismiss should not be used as a substitute for the responsive brief. When so used, it creates extra work for the Court and delays the briefing of the merits, which is especially troublesome if the jurisdictional objection is found not well taken.

As it turned out, the government’s jurisdictional argument was not well taken. Nonetheless, the Court viewed Lloyd’s filing in the district court as a transparent attempt to circumvent the requirement that he receive permission from the Court of Appeals before filing a second motion under 28 U.S.C. sec. 2255. The Seventh Circuit held that it had jurisdiction to hear the appeal, but the district court had no subject matter jurisdiction and should have dismissed the filing on that basis.

Defense counsel are rarely in the appellee position. But this case should be a good reminder to scrutinize the initial docketing statement and file a counter statement if necessary. Although the Court does not comment on the practice once a counter statement is filed, one can expect that filing a counter statement will elicit an order from the Court asking the appellant to clarify the jurisdictional issue.

Not All Cocaine Base Is Crack

2005-03-04T11:34:00.000-05:00

United States v. Carl Edwards, Case No. 03-4234 (02/11/2005): "All crack is cocaine base but not all cocaine base is crack." In this case the Court adhered to its earlier decision in United States v. Booker, 70 F.3d 488 (7th Cir. 1995) (not to be confused with the more recent and more famous Booker case) and held that the mandatory minimum for crack will not apply if the evidence merely establishes that the substance in question is cocaine base. The Court acknowledged that its ruling maintained a split among the Circuits and called for intervention by either the Supreme Court or the Congress.

The problem arises from Congress’ apparent misunderstanding of chemistry. "Cocaine" and "cocaine base," the two statutory terms, have the same chemical formula. In Booker the Court looked to legislative history (who says legislative history is unimportant?) and concluded that Congress, when it put higher penalties on "cocaine base," was attempting to deal with "crack." Hence, the government must do more than establish that the substance is cocaine base; it must demonstrate that it is "crack." The Court remanded for resentencing, at which the statutory mandatory minimum would not apply.

Booker and Plain Error

2005-03-01T12:37:00.000-05:00

United States v. Robert D. Palladino, et al., Case No. 03-2296 (02/25/2005), and United States v. Marcus Lee, Case No. 03-4239 (02/25/2005): Both opinions deal with the context of the defendant’s not raising a Booker objection in the district court. Palladino (which is a consolidated opinion for several cases) is the lengthier opinion and sets out the Seventh Circuit’s approach to Booker plain errors. Lee, heard before a panel with a somewhat different composition, merely applies the Palladino analysis. Both opinions were circulated to the full Court and are the functional equivalents of en banc opinions. Judges Ripple and Kanne, neither of whom was a member of either panel, dissented from denial of rehearing en banc.

Palladino observed that the problem is that the reviewing court will seldom know what the district court would have done had the objection been brought to its attention at the proper time. It identified some situations in which the reviewing court would know. For example, the district court could have said that it would have given the same sentence if the guidelines were advisory. Second, the district court could have departed downward to give the defendant the statutory minimum, which was the case with one of Palladino’s co-defendants. (Lee contains a suggestion that any downward departure is a statement that the district court would not have gone any lower.) Third, the district court could have given the statutory maximum and said that it regretted that it could not go higher, which was the case in Lee. Apparently, in all these cases, the Court will treat any claim of error as forfeited.

Strangely enough, the Court said nothing about the case in which the district court gave a sentence within the Guidelines and expressed the view that it would have given a lower sentence if it had been allowed to do so. Perhaps the Court felt that the consequence is so obvious: a reversal and remand for resentencing.

When a case does not fit into one of the three categories identified in Palladino, the Court will order a limited remand, with the Court retaining jurisdiction. If the district court says on this limited remand that it would give a different sentence under advisory guidelines, then the Seventh Circuit will give a full remand for resentencing. If the district court says the sentence would be the same, then the court "will affirm the original sentence against a plain-error challenge provided the sentence is reasonable."

On the limited remand, the district court shall obtain the views of counsel, in writing and perhaps orally as well. The defendant need not be present for these proceedings on the limited remand. The district judge must then put on the record its determination as to whether to resentence and must give "an appropriate explanation" for its decision. It is unclear whether the district court is supposed to express an opinion as to what it would have done at the time of the initial sentencing or what it would now like to do. The dissents charged that the limited remand would call for the district court to make a statement as to what it would have done and that this procedure was unfair because the district court did not have a full record at that time, since everyone at that time was proceeding on the assumption that the guidelines were mandatory. The dissenters' reading of the majority opinion is a plausible, but not the only, reading of Palladino. Unfortunately, the debate was not sharpened, since the majority made no response to this claim. One wonders if the dissenters correctly appraised the majority opinion. Why would the majority want written submissions to the district court and the district’s court’s explanation if the district court is limited to what it knew or thought at the time of the original sentencing?

Palladino does not explain what should happen if the district court expresses a view on the limited remand that it would like to sentence higher. Presumably, the defendant would have the option to withdraw the appeal or that portion of the appeal dealing with sentence. (Or the defendant could allow the case to be remanded for resentencing and then appeal the new, higher sentence on whatever grounds would be available.)

A puzzling part of Palladino is the statement that if the district court sticks by its original sentence, then the sentence will be reviewed for reasonableness. If the district court says the sentence would be the same, that would seem to rule out a finding that the error was plain error. With a statement that the sentence would be the same, the defendant cannot make the case for the proposition that the error could have made a difference. Yet the Seventh Circuit says the sentence will be reviewed for reasonableness.

But on what basis can the Seventh Circuit determine that the sentence was reasonable when the attorneys have not made a full presentation under section 3553(a)? If, as suggested in United States v. Crosby, the Second Circuit decision on which Palladino relied, a major component of reasonableness review is whether the district court followed the proper analytical framework, can a decision that ignored section 3553(a) ever be reasonable? It remains to be seen how the Seventh Circuit will give content to the reasonableness standard. (In dictum, the Court stated that a sentence for one of the defendants, derived from a downward departure, was reasonable, but it gave no explanation for its dictum, other than to note that the defendant was a 34 year old man who had received a 15-year sentence.)

Retroactivity of Booker on Collateral Review

2005-02-04T13:38:00.000-05:00

Marlon McReynolds v. United States, Case No. 04-2520 (02/02/2005):The three petitioners, all proceeding pro se, sought relief under 28 U.S.C. §2255. Invoking Apprendi v. New Jersey, they argued that their jury, not the judge, should have decided the weight of the drugs. On appeal, the Seventh Circuit issued a certificate of appealability in light of the Supreme Court’s decision in Booker. But the Seventh Circuit then declared that Booker is not retroactive to cases on collateral review. The opinion further stated that it had been circulated to all active judges under Circuit Rule 40(e), and no judge favored a hearing in banc.

In explaining its decision, the Court summarized the Breyer majority opinion as follows: ". . . decisions about sentencing factors will continue to be made by judges, on the preponderance of the evidence. . . . [T]he only change would be the degree of flexibility judges would enjoy in applying the guideline system." Under that characterization, Booker did not, in the Court’s view, fundamentally improve the accuracy of the criminal process.

Hobbs Act : An Unanswered Question

2005-01-31T13:28:00.000-05:00

National Organization for Women, Inc. v. Joseph M. Scheidler, Case No. 99-3076 (01/28/2005): This opinion is the latest installment in a long-running civil case involving the use of RICO against right-to-life protestors. Much of the discussion centers around whether the decision to send the case back to the district court for further proceedings is consistent with the mandate of the Supreme Court. The Seventh Circuit raises, but does not decide, an interesting question about the meaning of the Hobbs Act, which the plaintiffs invoked for predicate acts under RICO. "Whoever . . . affects commerce . . . by robbery or extortion . . . or commits or threatens physical violence . . . in furtherance of a plan or purpose to do anything in violation of this section . . . " shall be guilty of the offense. Is "physical violence," not connected to robbery or extortion, a violation of the Act? The Seventh Circuit reviews the competing arguments and precedents, but concludes that the district court should have the opportunity to address this issue.

Booker Remands

2005-01-24T13:01:00.000-05:00

Today the Supreme Court issued numerous remands in light of Booker. Counsel should be aware of Seventh Circuit Local Rule 54, which reads as follows: "When the Supreme Court remands a case to this court for further proceedings, counsel for the parties shall, within 21 days after the issuance of a certified copy of the Supreme Court's judgment pursuant to its Rule 45.3, file statements of their positions as to the action which ought to be taken by this court on remand."

The obligation to file a position statement is triggered by the remand, not by a request or order from the Seventh Circuit. So counsel should not sit back and wait for an invitation to file a position paper. Also, this position paper should not take the form of a request for a briefing schedule. Rather, it is counsel's only chance to tell the Seventh Circuit why it should grant relief on remand.

Since there are so many of these cases, the Seventh Circuit might issue some guidance that modifies Rule 54 for Booker cases. But at this point Rule 54 should be consulted.

RICO Reversal

2005-01-24T10:29:00.000-05:00

United States v. Brenda J. Cummings, Case No. 03-2660 (01/13/2005): Reves v. Ernst & Young, 507 U.S. 170 (1993) requires for a RICO violation that someone "conduct" or "participate in" the affairs of the RICO enterprise. One of the defendants, Morris, paid bribes to Cummings and other employees of the Illinois state governmental unit responsible for administering unemployment insurance. His object was to obtain information about individuals who owed debts to creditors for whom he was working as a "skip tracer." The Court reversed the RICO conspiracy convictions of the state employee and of the skip tracer. The core function of the Illinois agency was to pay benefits to unemployed workers and to collect insurance premiums from employers. Morris was not attempting to interfere with these core functions. The government's case was not aided by the theory that state employees like Cummings had a duty to keep personal information confidential. Although the payment of bribes can sometimes give the bribor control over an enterprise, the bribes in this case did not give control, since the bribes were not offered in an effort to interfere with the agency's core functions. The Court remarked that if the government had charged the skip tracer's business as the RICO enterprise, the Court might have come to a different result.

Sentence Reversed and Remanded

2005-01-21T15:25:00.000-05:00

United States v. David H. Swanson, Case No. 03-1863 (01/07/2005): Just days before the Supreme Court decided Booker, the Seventh Circuit reversed a sentence that was based on an inapplicable version of the Guidelines. The Seventh Circuit also reversed and remanded an order of restitution and an order of forfeiture. The government did not present any reasoned basis for the amounts of restitution that the district court entered. "It is not our responsibility to root through the thousands of pages that make up the record in this case. . ." in order to calculate a proper amount of restitution; instead, the government has the obligation to identify specific restitution obligations and to provide a reasoned basis for a proposed restitution order. Nor did the PSR's repetition of the government's summary conclusions provide any support for the district court's order. The Seventh Circuit also fleshed out what it means for property to be forfeitable as a result of being "involved" in the offense. The defendant's company made substantial purchases, from which he siphoned off much lesser sums of money. The district court entered a forfeiture of the entire purchase price, even though his company received value from the transactions. Instead, the court should have forfeited no more than his gain from the siphoned funds.

Felon In Possesssion Affirmed

2004-12-05T21:45:00.000-05:00

US v. MONTGOMERY,Case Number: 03-3096 (12/03/04). Defendant's conviction for being a felon in possession of a firearm is affirmed over his challenge to the district court's admission of allegedly inadmissible evidence at trial.