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.

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Sentencing and the Limits of Actuarial Risk Assessment

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…)

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Post-Booker Sentencing: Making Sense of the 3553(a) Laundry List

Note: this post is adapted from remarks I recently delivered to a group of federal criminal practitioners.

Post-Booker, sentencing in the federal system is nominally governed by 18 U.S.C. § 3553(a), but I often get a sense of frustration from judges and lawyers about this statute.  It seems that there’s really no “there there.”  The statute provides a long laundry list of sentencing considerations, including just about anything that anyone could possibly regard as relevant to the business of selecting a punishment.  It seems as if a judge could pick out a sentence anywhere within a wide statutory range and find a justification for it somewhere in 3553(a).

For lawyers who perceive 3353(a) this way, on either the prosecution or the defense side, I could readily understand why there would be some cynicism regarding post-Booker sentencing and perhaps even a disinclination to exert oneself much on sentencing advocacy.

But I’d like to suggest today that there is a plausible way of seeing 3553(a) such that it has a little bit more analytical structure, a little bit more definite content, than a simple laundry list.  In order to develop this point, I’ll need to unpack some of the history of 3553(a).

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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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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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Seventh Circuit Approves 30+ Years for Possession and Covert Production of Kiddie Porn

Last week, in United States v. Klug (No. 11-1339), the Seventh Circuit upheld a whopping sentence of 384 months for producing and possessing child pornography.  This sentence was actually below the guidelines’ recommendation of life.  Notably, for a case involving such an extraordinarily long sentence, there is no allegation that Klug coerced the child subjects of the pornographic videos he created, or that they were sexually molested.  Rather, the videos were made covertly, mostly involving showering, changing clothes, using the bathroom, and the like.  Moreover, Klug disguised the faces of the subjects before circulating their images.

Of course, what Klug did was very wrong, and if the kids ever find out that these sorts of images of them were circulated on the Internet, they would be well justified in feeling violated.  Still, in challenging the substantive reasonableness of his sentence, Klug may make a fair point that the district judge’s decision leaves little meaningful difference in the punishment for what he did and what the producers of violent, hard-core child pornography do.

Although not using the term, Klug apparently framed this argument as one of marginal deterrence: if we give 30-year sentences to producers who don’t molest their subjects, there’s no reason not to molest.

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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?

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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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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.

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CTA7: Sentencing Judge Cannot Consider Failure to Prosecute Coconspirator

On Friday, the Seventh Circuit ruled in United States v. Scott (No. 10-1597) that a judge sentencing one conspirator may not take into account the government’s failure to prosecute a coconspirator.  Here’s what happened.  In 2009, a federal grand jury charged Scott and a coconspirator with mail fraud.  Scott pled guilty and was sentenced to 63 months in prison, while, for unknown reasons, the government dismissed all charges against the coconspirator.  On appeal, Scott argued that the sentencing judge erred by not taking into account the unexplained dismissal of charges against the coconspirator.  In essence, his theory was this: federal sentencing law is intended to minimize unwarranted disparities as between similarly situated offenders, and the disparity between one conspirator getting a long prison term and the other one not even getting a conviction is a very profound one indeed.

The Seventh Circuit didn’t bite, holding categorically that “we reject the notion that a court may consider the coconspirator’s lack of a conviction under § 3553(a) because holding otherwise would deprive prosecutors of the opportunity to exercise any meaningful prosecutorial discretion in coconspirator cases” (8).

I agree, however, with Judge Williams’ concurring opinion that such a broad holding was unnecessary and regrettable.

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