Archive for the ‘Seventh Circuit’ Category

« Older Entries

Seventh Circuit: Defendant’s Punches Created Substantial Risk of Serious Bodily Injury

Monday, March 11th, 2013

In the course of being arrested on drug charges, Freddy Alexander took a couple of swings at a police officer.  As Alexander’s sentencing judge saw things, these punches boosted his guidelines offense level by six under §3A1.2(c)(1), which applies when a defendant creates a substantial risk of serious bodily injury to a law enforcement officer.  This despite the fact that Alexander only connected with one of his punches and caused only a minor injury that did not require medical attention.

The Seventh Circuit nonetheless affirmed Alexander’s sentence earlier today in United States v. Alexander (No. 12-1084) (per curiam).  The court observed that “§3A1.2(c)(1) applies to substantial risk of serious injury and does not require that the defendant actually have inflicted serious injury.”  Fair enough, but why think that Alexander’s punches posed such a risk?  I don’t know anything about Alexander’s size and strength, but I’m pretty sure that if I took a couple of swings at someone, I’d be much more likely to injure myself than my opponent.   (more…)

Print Friendly

Posted in Federal Sentencing, Federal Sentencing--Adjustments, Seventh Circuit | No Comments »

Fourth Amendment Not Violated by Driver’s Detention for 39 Minutes After Being Stopped for Speeding, Seventh Circuit Holds

Monday, January 7th, 2013

An Illinois State Trooper pulled over Oscar Bueno for driving his van 69 MPH in a 65-MPH zone.  Trooper Owen decided to give Bueno a written warning for speeding, but various aspects of the situation aroused his suspicions that Bueno might be transporting contraband.  After conducting further investigation, Owen determined that Bueno’s van carried drug money bound for Mexico.  Thirty-nine minutes into the stop, Bueno was handcuffed and taken into custody.

After his conviction on drug trafficking charges, Bueno argued on appeal that evidence from the stop should be suppressed since the stop had been unreasonably prolonged in violation of the Fourth Amendment.  Earlier today, the Seventh Circuit affirmed in United States v. Bueno (No. 11-2532) (Bauer, J.).

(more…)

Print Friendly

Posted in Fourth Amendment, Seventh Circuit | No Comments »

Sentence Not Improperly Enhanced Based on Defendant’s Silence, Seventh Circuit Rules

Monday, January 7th, 2013

At sentencing, defendants are expected to express remorse for their crimes.  Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis.  But what if the defendant chooses to say nothing at all at sentencing?  On the one hand, a judge might infer a lack of remorse from the defendant’s silence.  But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.

The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.).  Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing.  The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis.  On appeal, Keskes argued that the sentence violated his right to remain silent.  The Seventh Circuit, however, affirmed.

(more…)

Print Friendly

Posted in Federal Sentencing, Remorse and Defiance, Sentencing Factors, Seventh Circuit | No Comments »

Seventh Circuit Considers Scope of Conspiracy Liability for Retail Seller of Illegal Drugs

Wednesday, December 5th, 2012

Herbert Phipps was a meth addict and retail dealer.  After being nabbed by law enforcement agents, he was charged along with several others in a large conspiracy case.  Curiously, prosecutors chose to charge Phipps only with a conspiracy count, and not with a substantive drug trafficking offense.  The government’s theory was that Phipps conspired with his wholesale supplier.  Although the jury accepted this theory and convicted Phipps, the sufficiency of the evidence of a conspiracy became the most difficult issue facing the Seventh Circuit in his appeal.

Phipps could not be convicted of conspiracy unless there was another party to the conspiracy.  His guilt thus required that his wholesale dealer be a coconspirator, and whether this was so depended on the wholesaler’s intent.  As the Seventh Circuit observed,

Conspiracy is agreement, and it takes two to agree. “A person who sells a gun knowing that the buyer intends to murder someone may or may not be an aider or abettor of the murder, but he is not a conspirator, because he and his buyer do not have an agreement to murder anyone.” United States v. Lechuga, supra, 994 F.2d at 349. If Phipps’s supplier was indifferent to Phipps’s intended use for the drugs, even if he knew that it was to resell them, he is merely an aider and abettor of Phipps’s retail sale of illegal drugs and there was no conspiracy between them.  (10)

In addressing the application of conspiracy law to wholesaler-retailer relationships, the Seventh Circuit was hardly writing on a blank slate.  (more…)

Print Friendly

Posted in Federal Criminal Law--Substantive, Seventh Circuit | No Comments »

District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds

Monday, December 3rd, 2012

The U.S. Sentencing Commission wisely made its 2011 reductions to the crack sentencing guidelines retroactive, but this decision left district judges with discretion to deny sentence-reduction requests based on, among other things, a defendant’s post-sentencing misconduct.

Larry Purnell has learned the scope of this discretion the hard way.  Purnell pled guilty to crack and firearms offenses in 2007.  In his plea colloquy, Purnell admitted to the gun allegations under oath.  Based on various concessions from the government in return for his guilty plea, Purnell’s guidelines range for the crack offense was 78-97 months, and he received a sentence at the bottom of this range.  Despite the relative lenience of this treatment, Purnell later mounted collateral attacks on the gun conviction, claiming that his alleged weapon was really only a BB gun — in contradiction to his own statements at the plea colloquy.

These collateral attacks failed, but Purnell was given a fresh opportunity for a sentence reduction thanks to the Commission’s retroactive changes to the crack guidelines.   (more…)

Print Friendly

Posted in Drug Sentencing, Federal Post-Conviction Remedies (incl. Habeas), Federal Sentencing, Seventh Circuit | No Comments »

Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

Monday, October 22nd, 2012

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.   (more…)

Print Friendly

Posted in Drug Sentencing, Eighth Amendment--Applied to Sentencing, Federal Sentencing, Federal Sentencing--Mandatory Minimums (not ACCA), Seventh Circuit | No Comments »

Who Has Authority to Consent to a Search? Still No “Crisp Answer”

Monday, August 27th, 2012

Police wished to search the apartment of Victor Garcia, whom they had just arrested for drug trafficking.  They did not wish to obtain a warrant.  Fortunately, they found Garcia’s 18-year-old niece, who had a key and was most accommodating.  Inside the apartment, the officers found 13 kilograms of cocaine.  Could the evidence be used against Garcia?  Yes, said the Northern District of Illinois, holding that the officers had a reasonable belief that the niece had been authorized to allow a search of her uncle’s apartment.

On appeal, the Seventh Circuit affirmed earlier today in United States v. Garcia (No. 12-1805).

Judge Posner, writing for the panel, observed, “The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general treatment and probably never will.”  (4)

Posner described the problem in terms of a spectrum without a clear dividing line:

(more…)

Print Friendly

Posted in Fourth Amendment, Seventh Circuit | No Comments »

Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

Monday, August 20th, 2012

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea.  Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea.  While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation).  Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.  (more…)

Print Friendly

Posted in Defense Counsel--Ineffective Assistance, Federal Sentencing, Seventh Circuit | No Comments »

Seventh Circuit Affirms Three-Year Sentence for Debit-Card Fraud

Monday, August 13th, 2012

Dung Thi and her boyfriend operated a nail salon in Fitchburg, Wisconsin. When customers paid for services with a debit card, a hidden video camera recorded them as they typed their PINs. Thi and others used the information to make unauthorized withdrawals from the customers’ accounts; total losses were calculated to be more than $77,000. After Thi’s guilty plea, Judge Crabb (W.D. Wis.) imposed a below-guidelines sentence of 36 months.

On appeal, Thi argued that the district court did not adequately consider her arguments based on her role in the offense, the effect of the sentence on her three-year-old daughter, and the sufficiency of home detention. Earlier today, the Seventh Circuit affirmed in United States v. Thi (No. 11-3004) (per curiam).

On role in the offense, the court observed that Thi was at least as culpable as her coconspirators — she knew of the plot, carried a flash drive with her customers’ financial information, and personally made some of the illegal withdrawals herself. On the daughter, the district court’s discussion of the issue was “bare-bones,” but adequate — “the court said enough to satisfy us that it understood and took account of Thi’s family circumstances” (e.g., by recommending that Thi serve her sentence “as close as possible to her family”). On the possibility of home detention, the Seventh Circuit relied on the presumption of reasonableness of a below-guidelines sentence and the fact that the guidelines recommended against home detention in lieu of imprisonment for Thi.

Cross posted at Seventh Circuit Updates.

Print Friendly

Posted in Federal Sentencing, Federal Sentencing--Process, Federal Sentencing--Reasonableness Review, Seventh Circuit | No Comments »

Sentencing and the Limits of Actuarial Risk Assessment

Monday, August 6th, 2012

As child molesters go, Cory Reibel seems a relatively low-risk proposition.  He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism.  Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment.  Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions.  Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk.  However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.   (more…)

Print Friendly

Posted in Federal Sentencing, Federal Sentencing--Reasonableness Review, Seventh Circuit, Sexual Offenses | No Comments »

« Older Entries