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Today's Seventh Circuit Opinions Click here for the written materials from the 2009 CJA Panel Attorney Seminar. Case Summaries from the Seventh Circuit for dates of October 5, 2009 through September October 9, 2009: The Court of Appeals held that a district court is free to consider halfway-house placement as a possible condition of supervised release. The district court concluded that the Seventh Circuit’s decision in United States v. Head, 552 F.3d 640 (2009), precluded it from imposing, as a condition of supervised release, placement in a halfway house. The defendants argued that the court over-read Head, which in their view held only that halfway-house placement is not expressly authorized as a discretionary condition of release by §§ 3583(d) and 3563(b), not that it is affirmatively forbidden. The Court of Appeals noted that district courts have authority to impose certain specific discretionary conditions of supervised release, but the statute authorizing these conditions also includes a catch-all phrase which allows a court to impose "any other condition it considers to be appropriate." Those other conditions must respect three limitations. First, the condition must respect factors set forth in 3553(a). Second, the condition cannot impose any "greater deprivation of liberty than is reasonably necessary" to advance the goals of deterrence, protection of the public, and serving the defendant’s correctional needs. Third, the condition must be consistent with the Sentencing Commission’s policy statements. Halfway-house placement has always affirmatively been authorized as a discretionary condition of probation. Although it was excluded from the list of discretionary conditions expressly permitted as a condition of supervised release, the statute is otherwise silent about this particular condition. Moreover, the 2008 amendment to the statute does not carry with it the negative inference that halfway-house placement fell beyond the scope of the residual clause prior to the amendment. As the court discussed in Head, the omission of halfway-house placement from the list of permitted conditions was almost certainly accidental, and the court understood the 2008 amendment simply to be correcting that glitch in the statute. Accordingly, the court held that placement in a halfway house should be viewed as a legitimate additional condition not affirmatively authorized by statute, rather than one expressly forbidden. Case Summaries from the Seventh Circuit for dates of September 21 through September October 2, 2009: OFFENSES
Evidence insufficient to prove defendant ever possessed a weapon prior to his felony conviction. United States v. Katz, ___ F.3d ___ (7th Cir. 2009; No. 08-3141). In prosecution for possession of a weapon by a felon, the Court of Appeals reversed the defendant’s conviction, finding that the evidence was insufficient to establish that the defendant possessed the weapon as charged in the indictment. Officers responded to a 911 call, whereby the caller complained that her boyfriend (the defendant) was threatening her and she wanted him removed from her home. She also reported he was outside her home with a large revolver. When police arrived, the defendant was walking down the street. He was arrested, but had no weapon on him. A search of the girlfriend’s home, however, recovered a shotgun, which was later found to have the defendant’s fingerprint on it. Based on theat weapon, the government indicted him. At trial, the parties stipulated that "prior to February 17, 2007 (the date of the defendant’s arrest)" the defendant had been convicted of a felony. The Court of Appeals found that there was no evidence to indicate that the defendant ever possessed the shotgun prior to the date in the indictment. Although his fingerprint was on the shotgun, the fingerprint expert also testified that it was not possible to determine how long the fingerprints had been on the shotgun. Thus, there was nothing but pure speculation as to when the defendant was in contact with the shotgun. Secondly, nothing demonstrated constructive possession. The evidence showed nothing but the defendant’s mere presence on the property. Nothing showed that he resided on the premises or ever stayed there for any period of time. The only evidence presented indicated that the home belonged exclusively to the defendant’s girlfriend. Accordingly, the evidence was insufficient to show that the defendant possessed the weapon after he was convicted of a felony. RETROACTIVITY Remand necessary for factual finding of whether the defendant distributed more than 4.5 kilograms of crack, where defendant only admitted to distributing more than 1.5 kilograms of crack. United States v. Hall, ___ F.3d ___ (7th Cir. 2009; No. 08-2389). Upon consideration of a defendant’s petition to reduce his sentence pursuant to the retroactive amendment to the crack cocaine guideline, the Court of Appeals remanded the case to the district court for a determination of how much crack cocaine for which the defendant was responsible. When the defendant was originally sentence, he agreed in his plea agreement that he was responsible for distributing more than 1.5 kilograms of crack cocaine. The plea agreement indicated that the defendant was responsible for various amounts of crack cocaine and powder cocaine distribution, but the calculations were not precise. Nevertheless, based on those references in the plea agreement, the district court found the defendant was responsible for distributing more than 4.5 kilograms of crack and thus ineligible for a reduction. The Court of Appeals held, however, that the total amount of crack sold in connection with the defendant’s offense, as admitted in the relevant paragraphs of the plea agreement, were unclear, and a reasonable reading of the facts could result in a finding that the defendant’s conduct involved less that 4.5 kilograms of crack. Thus, the district court ignored an ambiguity in the facts and misapprehended the content of the defendant’s plea admission. Accordingly, the district court must answer on remand how much more than 1.5 kilograms the defendant distributed. SENTENCING
A district court may not consider the crack/powder disparity to vary from a guideline sentence determined by the career offender guideline, overruling the Seventh Circuit’s decision in United States v. Liddell. United States v. Welton, ___ F.3d ___ (7th Cir. 2009; No. 08-3799). In prosecution for distribution of crack cocaine, the Court of Appeals held that a district court may not consider the crack/powder disparity to vary from a guideline sentence determined by the career offender guideline. The defendant was found to be a career offender, but argued that the court should sentence him to a below-guideline sentence to the crack/powder disparity. Specifically, the career offender offense level is determined by the statutory maximum for the crime of conviction, and the statutory maximum for distributing crack cocaine is significantly higher than that for powder cocaine. Accordingly, through the statutory maximum, the career offender guideline reflects the disparity which Kimbrough held a district court may consider when varying from the Guidelines. The Court of Appeals held, however, that unlike the crack/powder disparity, the career offender Guideline range is the produce of a Congressional mandate. As even Kimbrough noted, Congress specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders "at or near" the statutory maximum." Deviating from the career offender Guideline based on a policy disagreement necessitates that a sentencing court disregard those statutory maximums. Although the Sentencing Guidelines may be only advisory for district judges, congressional legislation is not, and the statutory origin of the disparity embedded in the career offender guideline removes that disparity from the sentencing discretion provided by Kimbrough. In so holding, the court noted that its decision in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), indicated a contrary conclusion. In Liddell, the court recognized what it called the defendant’s "more nuanced" argument of whether a district court "can consider the disparity as a reason for issuing a below-guideline sentence" for career offenders. This reasoning in Liddell was inconsistent with the court’s decision in United States v. Harris, 536 F.3d 798 (7th Cir. 2008), which specifically held that a court may not consider the disparity in the career offender context. The court concluded that Liddell under-read Harris as merely reaffirming that Kimbrough did not change the way the court’s calculate the career offender guideline ranges, but this reading overlooked Harris’ emphatic point that Kimbrough does not authorize a district court to disagree with the statutory authority embedded in the career offender guideline. Accordingly, to the extent that Liddell was inconsistent with Harris’ holding that a district court may not rely on the crack/powder disparity embedded in the career offender guideline as a basis for imposing a non-Guidelines sentence, the court disavowed that portion of its decision in Liddell. Because Liddell was overruled, the opinion was circulated among all the judges, three of whom dissented from the denial of a hearing en banc. GUIDELINE ISSUES
Where defendant stole Medicaid numbers to submit false claims for reimbursement, the victims were not the people whose numbers were stolen, but rather Medicaid. United States v. Sutton, ___ F.3d ___ (7th Cir. 2009; No. 08-3370). In prosecution for health care fraud, the Court of Appeals reversed the district court’s sentencing enhancement for the offense involving more than 250 victims. The defendant ran a completely phony psychological counseling center, whereby he stole the Medicaid numbers of over 2,000 individuals to submit false bills for Medicaid payments. The district court relied found the individuals whose numbers were stolen to be victims of the crime and enhanced the defendant’s sentence because the fraud involved more than 250 victims. The defendant argued on appeal that the only victim of his fraud was Medicaid. The Court of Appeals agreed. The Application Note to the relevant guideline defines a "victim" as "any person who sustained any part of the actual loss determined" under the guideline. Moreover, subsection (b)(1) of the guideline refers exclusively to the monetary loss occasioned by the crime, and the relevant application notes explain that the actual loss must be "pecuniary harm . . . that is monetary or that otherwise is readily measurable in money." In the present case, none of the individuals whose numbers were stolen actually paid for a service they did not receive. They were not even aware of the crime until the government began investigating the crime. Although the government argued they were harmed because their Medicaid benefits were exhausted by the fraud, the government also conceded that a system had been put in place to allow those individuals to go through a process that would waive the limits on their benefits so that the defendant’s exhaustion of their benefits would not affect their eligibility for services. Therefore, given the government’s failure to demonstrate that any of the individuals suffered pecuniary harm, the court concluded that they were not victims.
Obstructing an investigation into a crime of terrorism can be one way of promoting that crime sufficient to warrant a terrorism sentencing enhancement. United States v. Ashqar, ___ F.3d ___ (7th Cir. 2009; No. 07-3879). In prosecution for obstruction of justice and civil contempt, the Court of Appeals held that the district court properly applied an enhancement because the defendant’s offense was "intended to promote" a federal crime of terrorism. The defendant was under investigation for 10 years for his role as a communication and financial conduit for the terrorist organization Hamas. Twice he was subpoenaed to testify before the grand jury, but he refused to testify, even after being granted immunity and being ordered by the judge to do so. The government charged him with obstruction of justice and criminal contempt, and the district court enhanced his sentence because the criminal contempt conviction was "intended to promote" a federal crime of terrorism. The defendant argued that an intention to obstruct a terrorism investigation did not "promote" a federal crime of terrorism as required by the guideline. The Court of Appeals disagreed, holding that obstructing an investigation into a crime can be one way of promoting that crime. Intent to obstruct is enough, at lease where obstructing an investigation promotes the crime. Promoting a crime includes helping and encouraging that crime, and one way of furthering a crime is to try to prevent the government from finding out about it. So long as the sentencing court finds that the defendant intended to obstruct an investigation into a federal crime of terrorism, as opposed to an investigation into more ordinary violations of the law, the court has found the intent required by the guideline. |
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