So Long, Harris — Breyer’s on Board

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States.  The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences.  Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed.  Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence.  Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum.  Thus, Breyer’s vote in Harris was simply another vote against Apprendi.  This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come.   Continue reading “So Long, Harris — Breyer’s on Board”

SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections

So just how advisory are the “advisory” federal sentencing guidelines?  That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.

The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.”  Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts.  Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences.  Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.

The new system also raised Ex Post Facto Clause issues, which divided the lower courts.  Peugh nicely illustrates the problem.

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

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.

Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation.  So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively?  Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months.  (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.)  In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant.  However, the judge did not mention the Note 2(B) factors.  This, the Seventh Circuit held, was plain error.   Continue reading “Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing”

Should Defendants Have a Right to Cross-Examine Victims Who Make Impact Statements?

Paul Cassell and Edna Erez think not.  Their reasoning is set forth in an interesting new article, “Victim Impact Statements and Ancillary Harm: The American Perspective,” 15 Can. Crim. L. Rev. 149.  Apparently, Canadian law provides such a right, but the dominant view among the American states seems to be to the contrary.  Among other helpful contributions, Cassell and Erez provide a comprehensive 50-state survey of the relevant law.  Although the statutory law of most states is silent on this question, Cassell and Erez find that the case law, while still developing, is inclining against cross-examination.

The authors applaud this trend.  Their reasoning rests on three considerations.

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Setser v. United States: Bureaucratic Sentencing on Trial, Again

While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

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Sentencing, Stereotypes, Porn, and Plain Error

Add one more to an interesting line of Seventh Circuit cases that overturn sentences because of a district judge’s apparent reliance on facts that are not in the record, and that seem instead to be based on stereotypes about certain types of offenders.  (For earlier cases, see here and here.)  In the new case, United States v. Halliday (No. 10-2337), the district judge imposed a 240-month sentence for child pornography possession and receipt — 30 months longer than the government requested — because “this Court has seen no remorse, no acceptance; belief that this is just ordinary conduct, victimless crimes.”

The trouble is that nothing in the record supported the judge’s perception of a “belief that this is just ordinary conduct, victimless crime.”  No doubt, there are many child pornography defendants who have this view, or who say things at sentencing suggesting such a view.  But, as far as one can tell, Halliday was not one of them, and it is indeed troubling that the district judge seemed to be sentencing him on the basis of generic perceptions about his class of offenders.

But did this really rise to the level of plain error, as the Seventh Circuit held?

Continue reading “Sentencing, Stereotypes, Porn, and Plain Error”

Seventh Circuit Overturns Sentence for Lack of Responsiveness to Defendants’ Arguments for Lenience

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990’s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a below-guidelines sentence.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.

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Seventh Circuit Clarifies When Sentencing Judge Must Address Fast-Track Argument

Post-Booker, it took a long time for the Seventh Circuit to recognize the authority of sentencing judges to impose below-guidelines sentences in order to address disparities created by fast-track programs.  (For background, see my post here.)  When the court finally did so last year, a new question was created: under what circumstances, if any, is the sentencing judge required at least to address a fast-track argument?  Last week, the court supplied an answer in United States v. Ramirez (No. 09-3932):

We hold that a district court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means that the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. It also means that the defendant must establish that he would receive a fast-track sentence in at least one district offering the program and submit a thorough account of the likely imprisonment range in the districts where he is eligible, as well a candid assessment of the number of programs for which he would not qualify. Until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence.  (3)

Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More

Yesterday, in United States v. Garthus (No. 10-3097), the Seventh Circuit affirmed a thirty-year sentence for a defendant who pled guilty to transporting, receiving, and possessing child pornography.  Given the defendant’s age, 44, this is close to a de facto life sentence, which is remarkable — or should be remarkable, but perhaps really isn’t any more — for a mere consumer, not a producer, of kiddie porn.

In any event, Judge Posner’s wide-ranging opinion for the panel includes much food for thought.  Here are some of the more noteworthy aspects of his analysis, some of which have broad relevance to sentencing outside the pornography context.

Continue reading “Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More”