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

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…)

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Who Is a “Supervisor”? We Know One When We See One

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Posner seemed to scoff at this approach:  (more…)

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Do Democratic Sentencing Judges Lack Integrity?

That’s the intriguing question raised by Joshua Fischman and Max Schanzenbach’s new article, “Do Standards of Review Matter?  The Case of Federal Criminal Sentencing,” 40 J. Legal Studies 405 (2011).  Schanzenbach has produced a series of fascinating empirical studies of federal sentencing over the years.  Among other things, his prior work served to demonstrate that Democratic and Republican appointees tend to sentence differently.  The new paper adds a new dimension to this finding by showing that Democratic district judges tend to change their sentencing practices when the appellate standard of review changes, while Republican sentencing seems relatively unaffected.  In other words, to put a sharper point on the findings, Democrats seem to sentence more frequently under the guidelines range when they know they can get away with it.

Does this demonstrate that Democrats sentence based on their personal social values, rather than on legally permissible considerations, while Republicans are more faithful to the law?  That’s one plausible interpretation of the data, but not the only one.

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“Fast-Track” Goes National for Illegal Reentry; Now How About Covering More Offenses?

In a memo by Deputy Attorney General James Cole earlier this week, the Department of Justice announced an important policy change on “fast-track” plea bargaining.  Fast-track programs were developed by the Mexican border districts in the 1990’s in order to process a growing volume of illegal reentry cases quickly.  By agreeing to an early plea deal and waiving practically every imaginable procedural right, defendants were given large sentencing breaks.  These programs were controversial for a number of reasons, not the least of which was the fact that reentry defendants were getting dramatically different sentences depending on the district where they happened to be apprehended, in contravention of the sentencing guidelines’ emphasis on uniformity across the federal system.  Despite these concerns, Congress chose to legitimize fast track in 2003 in the PROTECT Act, which permitted each individual U.S. Attorney’s Office to decide for itself whether to offer fast track, subject to some central (and ill-defined) DOJ supervision.  Fast-track spread rapidly beyond the border districts, but was not embraced everywhere, and the disparity objections have only grown louder.

In order to address these objections (and probably also to reduce the burden of litigating requests by defendants in non-fast-track districts to be awarded fast-track benefits as a matter of the sentencing judge’s discretion), the Cole Memo now mandates fast-track opportunities for illegal reentrants in all districts.

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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 Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach

Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.

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Seventh Circuit Clarifies “Minor Role” Adjustment

As part of a larger scheme of mortgage fraud, Tomas Leiskunas acted as the straw purchaser of seven properties.  He was later indicted and pled guilty to wire fraud.  At sentencing, he sought a minor role adjustment, claiming that he acted at the direction of others and had no knowledge of the big-picture scheme.  The sentencing judge denied the adjustment, but the Seventh Circuit overturned that decision earlier today.  Along the way, the court helpfully clarified that the minor role analysis should focus on the defendant’s relative culpability, and not on whether his acts were necessary to the scheme or repeated many times.  Here is what the court said:

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Sentencing Commission Seems Likely to Make Crack Amendment Retroactive, But Who Will Benefit?

I testified earlier today before the U.S. Sentencing Commission on retroactivity for the new crack amendment.  Here are a few off-the-cuff impressions.

This was my first time appearing before the Commission, and I was quite impressed by how engaged and well-prepared the Commissioners were.  Through a long morning of testimony by a dozen witnesses, the Commissioners asked many questions, and not one of the questions seemed ill-conceived or poorly articulated.  They had obviously read with real care the written submissions by the witnesses, and they went right at the key problems with each witness’s position.  Testifying was like oral argument before an exceptionally good appellate panel.

The Commissioners seemed pretty clearly inclined to make Parts A and C of the amendment package retroactive.  (Part A reduces sentences for crack offenders based on drug quantity; it’s another two points from the offense level for many current prisoners, as also happened with the  2007 amendment.  Part C ends the treatment of simple possession of crack as a trafficking offense.)  On several occasions, one commissioner or another referred to a “consensus” in favor of retroactivity for A and C.  That view, in some form or another, was favored even by most of the witnesses who were there to represent law-enforcement perspectives.

But it’s not clear how far the retroactivity decision will reach.  Attorney General Holder led off the hearing with something of a surprise from the Department of Justice.  The Department is taking a position in favor of retroactivity, but with two major exclusions: offenders in criminal history categories IV-VI or with a weapons enhancer (guidelines or 924(c)).  This would exclude about half of the offenders who are otherwise eligible for a sentence reduction.

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Reforming Federal Drug Sentencing: From the Cutting Room Floor

In a recent post, I put up a preliminary draft of my testimony to the Sentencing Commission next week on retroactivity for the pending crack amendment.  At the end of the statement, I included a general suggestion for reform of the drug sentencing guidelines.  In my first draft, I had an additional suggestion, but then decided that it would be better for the testimony to be more focused.  I thought it might nonetheless be of interest to others, so I set it forth below.

By way of background, the drug guidelines are set up so that the guidelines range for any given quantity of drugs will be above the applicable statutory minimum.  The minimums thus become anchoring points, and quantities above the minimum-triggering amounts get proportionately higher sentences.  In effect, what the Commission has done is to incorporate and exacerbate the excessive harshness of the minimums in the guidelines.  No statute requires the Commission to do this.

Here’s my advice to the Commission:

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Retroactivity for Crack Amendment

I am testifying next week before the U.S. Sentencing Commission on the topic of retroactivity for pending amendments to the sentencing guidelines dealing with crack cocaine.  Amendments to the guidelines do not normally apply to defendants who have already been sentenced.  If, however, the Commission chooses to make an amendment retroactive, then imprisoned defendants who were sentenced under the old guideline can apply for sentence modifications based on the amendment.  When the Commission reduced crack sentences in 2007, the amendment was made retroactive.  The current amendment package, however, presents some new wrinkles because it includes a more diverse mix of changes, some of which will actually increase crack sentences.

A first draft my witness statement appears after the jump.  I would welcome suggestions.

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