Archive for the ‘Federal Sentencing’ Category

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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…)

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

New Essays on Restitution and Sentencing Commissions

Tuesday, January 15th, 2013

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively.  These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions.  In considering these case studies, as well as the experience with sentencing commissions in a few other states, my

primary theme is the relationship between sentencing commissions and legislatures. Although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.” A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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Posted in Federal Sentencing, State Sentencing (Not WI) | 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…)

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

Which Cities Have the Largest Sentencing Disparities?

Wednesday, December 26th, 2012

For a generation, federal sentencing policy-makers have been preoccupied by the ideal of national uniformity — the ideal that federal judges in Milwaukee should sentence the same as federal judges in Maine and Miami.  I’m a long-time skeptic of this ideal; since most of the impact of most crime is local, why shouldn’t local needs and values determine the punishment?  But even I am troubled by judge-to-judge disparities within a single federal courthouse.  The random assignment of a case to one judge instead of another should not govern the punishment.

Although there has been a great deal of anecdotal evidence of such local disparity, it has been very hard to quantify because of a longstanding agreement between the U.S. Sentencing Commission and the federal judiciary that blocks the release of judge-specific setencing data.  However, thanks to a great deal of painstaking effort by the Transactional Records Access Clearinghouse, it is now possible to analyze the sentencing practices of individual judges.

Earlier this year, TRAC made waves with a public announcement of which districts had the greatest inter-judge disparity.  However, TRAC’s methodology was sharply criticized, and with good reason.  More recently, TRAC published a new and improved version of its report at 25 Fed. Sent. Rep. 6 (2012).

So, which cities have the greatest disparities?   (more…)

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Posted in Empirical Research, Federal Sentencing | 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…)

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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…)

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

Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

Friday, September 7th, 2012

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years.  (Eight of these, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, strongly reminiscent of a modern “fast-track” plea-bargaining system.  (more…)

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Posted in Criminal Procedure, Empirical Research, Federal Sentencing, Federalism and Criminal Law, Fourth Amendment, Plea Bargaining, Prosecutorial Discretion | 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…)

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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.

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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…)

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

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