Today's Seventh Circuit Opinions

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Recent Case Summaries through March 1, 2010:

Counsel may constitutionally represent co-defendants so long as there is neither an actual conflict of interest nor a serious potential for a conflict to arise. United States v. Turner, __ F.3d ___ (7^th Cir. 2010; No. 08-2350). Upon consideration of the district court’s disqualification of retained counsel because he represented a co-defendant, the Court of Appeals held that the disqualification denied the defendant his Sixth Amendment right to the counsel of his choice. The government argued that the joint representation presented and insurmountable conflict of interest because one defendant might decide to cooperate against the other. But the defendant argued that there was no actual conflict because neither client wanted to assist the government and prosecutors had not shown the slightest interest in securing either defendant’s testimony against the other. Moreover, both defendants waived any conflict of interest. The district court however focused on the possibility of cooperation against each other and held that this possibility was sufficient to create an "absolute" conflict of interest. The Court of Appeals disagreed, noting that a defendant has the right to counsel of his choice if he does not require appointed counsel. There is a presumption in favor of this choice, although it may be overridden if there is an actual conflict of interest or a "serious potential for conflict. Here, the district court relied on a mere possibility of a conflict, yet such a possibility is present in nearly every case of joint representation. Only a serious potential conflict will justify overriding the defendant’s choice of counsel. This requires an inquiry into the likelihood that the potential conflict will mature into an actual conflict and the degree to which it threatens the right to effective assistance of counsel. Accordingly, before disqualifying counsel based on a potential conflict, the district court should evaluate (1) the likelihood that the conflict will actually occur; (2) the severity of the threat to counsel’s effectiveness; and (3) whether there are alternative measures available other than disqualification that would protect the defendant’s right to effective counsel while respecting his choice of counsel. The government bears the burden of nonpersuasion, and in the present case, the facts made clear that the likelihood of a conflict actually occurring, the most important factor, was very remote. Thus, the case was remanded for a new trial.

The Blockburger test should be applied at the sentencing phase to determine whether separate sentences are appropriate for the crimes charged and convicted, even where those crimes arise out of single criminal act. United States v. Crowder, ___ F.3d ___ (7^th Cir. 2009; No. 08-3320). In prosecution for conspiracy and attempted possession of drugs, the Court of Appeals held that no double jeopardy violation occurred where the defendant was sentenced for both charges separately. A defendant may be charged and convicted for both conspiracy and attempt under 846, but the Court of Appeals had not previously ruled on whether imposing separate sentences for conspiracy and attempt improperly punishes a defendant for the same criminal conduct. The Ninth Circuit held that such sentencing was improper, but the Sixth, Eight, and Tenth circuits disagreed. The Seventh Circuit joined the majority of circuits, and held that the Blockburger test should be applied at the sentencing phase to determine whether separate sentences are appropriate for the crimes charged and convicted, even where those crimes arise out of single criminal act. Applying that test in the present case, a court must determine whether each provision requires proof of a fact which the other does not. Conspiracy and attempt are separate offenses under this inquiry: conspiracy requires and agreement with another person, whereas attempt may be completed alone. Thus, there was no double jeopardy violation.

Conviction for both bankruptcy fraud and obstruction of justice arising out of the same facts was a violation of double jeopardy. United States v. Peel, ___ F.3d ___ (7^th Cir. 2010; No. 07-3933). In prosecution for bankruptcy fraud and obstruction of justice, the Court of Appeals held that convicting the defendant of both offenses violated the Double Jeopardy Clause. Both offenses were predicated upon the same conduct by the defendant. The court initially noted that the elements of the two offenses are different. However, the test for whether there are tow offenses or only one, is whether each provision requires proof of a fact which the other does not. Here, the test was not passed, because convicting the defendant of obstructing justice did not require proof of any fact that didn’t have to be proved to convicted him of bankruptcy fraud. It was thus a lesser-included offense of bankruptcy fraud and the Blockburger test makes clear that to punish a person for a lesser-included offense as well as the "including" offense is double jeopardy unless Congress intended double punishment, which it did not in this circumstance. The case is like a case in which a person is tried for both murder and attempted murder. The elements are different, but since conviction for murder automatically convicts the defendant of attempted murder, the defendant cannot be convicted of both crimes. Regarding which conviction to vacate, the Constitution does not dictate that a particular conviction be vacated, but it is rather committed to the trial judge’s discretion. Usually, it’s the conviction carrying the lesser penalty that is vacated, however.

Testimony of expert who relied upon tests and data performed and gathered by a different person, but who drew his own conclusions, did not violate the defendant’s Confrontation Clause rights. United States v. Turner, ___ F.3d ___ (7^th Cir. 2010; No. 08-3109). In prosecution for distribution of crack cocaine, the government originally intended to call as an expert a government chemist who analyzed the substances seized from the defendant for evidence of the weight and type of drugs. However, because this expert was on maternity leave at the time of trial, the government instead called her supervisor, who relying on the data collected from the first expert, testified to his conclusions in court. The defendant argued that allowing someone other than the chemist who actually performed the test to testify violated his Sixth Amendment confrontation right. The Court of Appeals disagreed. First, the court noted that the original chemist’s lab report, notes, and data charts were not introduced into evidence. Although the witness did rely on information gathered and produced by the other chemist, the conclusion draw by the expert was his own. Moreover, the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527(2009), did not alter the analysis. In that case, the prosecution introduced certificates of analysis as a substitute for in-court testimony to show that the substance recovered from the defendant was cocaine. The certificates were sworn to before a notary public by analysts at the State Lab in Massachusetts. The Supreme Court held that the certificates were testimonial statements and the prosecution could not prove its case without first showing that a witness was unavailable and that the defendant had an opportunity to cross-examine him. The court also noted, however, that "we do not hold that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. Here, the chemist’s report was not admitted into evidence, let alone presented to the jury in the form of a sworn affidavit. Instead, the expert witness presented his own conclusions, which was permissible.

Court erred in admitting evidence of death of individuals who purchased drugs from the defendant, when that evidence had no relevance to issue of whether defendant distributed drugs and was highly prejudicial. United States v. Cooper, ___ F.3d ___ (7^th Cir. 2010; No. 08-4021). In prosecution for conspiracy to distribute heroin, the government introduced evidence that several of the defendant’s customers had died. The district court admitted the evidence as relevant, but never weighed the probative versus unfairly prejudicial effect of the evidence. The Court of Appeals held that the district court erred by failing altogether to conduct a Rule 403 analysis, which was part of the process to admitting evidence that it had no discretion to omit. Moreover, evidence of what happened to the defendant’s customers after they bought heroin from him had nothing to do with the charge of conspiracy to distribute. However, because of the overwhelming evidence, the court found the error to be harmless.

The grant of certiorari by the Supreme Court on an issue that might affect the defendant’s legal innocence is not a "fair and just reason" to withdraw a plea. United States v. Mays, ___ F.3d ___ (7^th Cir. 2010; No. 09-1767). On appeal from the district court’s denial of the defendant’s motion to withdraw his guilty plea, the Court of Appeals held that the grant of certiorari by the Supreme Court on an issue that might affect the defendant’s legal innocence is not a "fair and just reason" to withdraw a plea. After the defendant pleaded guilty but before sentencing, the Supreme Court granted certiorari in Arizona v. Gant, 129 S.Ct. 1710 (2009). Because a favorable ruling in Gant might have given the defendant a basis for suppressing the gun precipitating his federal charge, he moved to withdraw his plea, but the district court denied his motion. The Court of Appeals noted that it has recognized several fair and just reasons for withdrawing a plea, including: the plea was not knowing and voluntary, actual innocence, and legal innocence. The defendant characterized the basis for his claim as legal innocence. The court noted that there is some authority for the proposition that a post-guilty plea, pre-sentence change in Supreme Court precedent that bears on a defendant’s legal innocence may constitute a fair and just reason for permitting the withdrawal of the plea. In this case, however, there was no intervening change in Supreme Court precedent: Gant was not decided until after the defendant was sentenced. The fact that the Supreme Court had granted a writ of certiorari and heard oral arguments in Gant was not indicative of a change in the law. At most, it signified that a change in the law was possible. No authority holds that the mere possibility of a change in Supreme Court precedent is a fair and just reason for withdrawal of a guilty plea.

Erroneous instruction on meaning of "resulted in death or serious bodily injury" in prosecution of drugs which resulted in same required reversal. United States v. Hatfield, ___ F.3d ___ (7^th Cir. 2010; No. 09-1705). In prosecution for distributed drugs which "resulted in death or serious bodily injury," the Court of Appeals held that the district court’s instruction on "resulted in" was erroneous and required a retrial. The instruction began by stating that the jury had "to determine whether the United States has established, beyond a reasonable doubt, that the victims died, or suffered serious bodily injury, as a result of ingesting a controlled substance or controlled substances distributed by the defendant." But then it added that the controlled substances distributed by the defendants had to have been "a factor that resulted in death or serious bodily injury," and that although they "need not be the primary cause of death or serious bodily injury" they "must at least have played a part in the death or in the serious bodily injury." It was the second part of the instruction which the court found to be erroneous. The statutory term "results from" required the government to prove that ingestion of the defendants’ drugs was a "but for" cause of the deaths, and the death need not have been foreseeable. But the government at least must prove that the death or injury would not have occurred had the drugs not been ingested. All that would have been needed to be a proper instruction was elimination of the addition to the statutory language, which was clearer than the addition and probably clear enough. Elaborating on a term often makes it less rather than more clear, which is what happened in this case. Moreover, no case has approved the language that was added to the instruction. Finally, the error in this case was not harmless, as the evidence showed that the victims ingested multiple drugs, some of which came from the defendants and some of which did not. It was therefore unclear how a juror would have fitted that evidence into the erroneously given instruction.

Evidence was insufficient to sustain a conspiracy conviction, where the evidence showed only a buyer-seller relationship. United States v. Johnson, ___ F.3d ___ (7^th Cir. 2010; No. 09-1912). In prosecution for conspiracy to distribute drugs, the Court of Appeals held that the evidence was insufficient to sustain the defendant’s conviction, and he only engaged in a buyer-seller relationship. The government’s case was based on wiretapped phone calls that captured conversations in which the defendant asked to purchase resale quantities of drugs from his supplier. The Court of Appeals noted that a drug purchaser does not enter into a conspiracy with his supplier simply by reselling the drugs to his own customers. A conspiracy requires more; it requires evidence that the buyer and seller entered into an "agreement to commit a crime other than the crime that consists of the sale itself." The government therefore had to prove that the defendant and someone else entered into an agreement to distribute drugs, and this required evidence that is distinct from the agreement to complete the underlying wholesale drug transaction. Although the content of the intercepted phone calls suggested the defendant was a middleman who resold drugs he purchases, that is all it suggested. As such, the evidence was insufficient to prove the defendant entered into a conspiracy to distribute drugs. The Court of Appeals therefore vacated the defendant’s conviction on the conspiracy count.

Defendant waived his right to argue on appeal that a photo array was unduly suggestive because trial counsel failed to file a motion to suppress in the district court. United States v. Acox, ___ F.3d ___ (7^th Cir. 2010; No. 09-1258). In prosecution for bank robbery, the Court of Appeals held that the defendant waived his right to argue on appeal that a photo array was unduly suggestive because trial counsel failed to file a motion to suppress in the district court. Federal Rule of Criminal Procedure 12(e) provides that a party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c), and included among the motions that are covered by the rule are "motions to suppress evidence." The court noted that it often takes evidence from psychology and statistics to decide whether a photo spread or lineup is "unduly suggestive" and, if so whether the suggestiveness is "irreparable." Requiring a motion in the district court allows the record to be made on such questions. Although Rule 52(b) allows for plain error review of some waived error, the court concluded that it would in inappropriate to use Rule 52(b) to undercut an express provision of Rule 12(e), which contains its own safety valve: "For good cause, the court may grant relief from the waiver." However, this "good cause" argument must be made in the district court, not the appellate court. Although the good-cause decision is committed to the district court rather than the court of appeals, such a conclusion does not preclude all possibility of relief when trial counsel never tries to show good cause. A court of appeals still may inquire whether, if a motion for relief had been made and denied, the district court would have abused its discretion in concluding that the defense lacked good cause. In the present case, the defendant did make such an argument, but the record did not show why counsel did not make a pretrial motion to suppress, making in impossible to evaluate or conclude that good cause existed. Accordingly, the Court of Appeals refused to consider the issue, and noted that a collateral attack where new evidence could be presented was the proper way to raise the issue.

Court must provide some explanation regarding why a 3582(c)(2) motion is denied. United States v. Marion, ___ F.3d ___ (7^th Cir. 2009; No. 09-2525). Upon appeal from the denial of a 3582 motion, the Court of Appeals held that the district court did not provide an adequate explanation as to why the motion was denied. The entirely of the court’s explanation for the denial was a single sentence which stated, "As directed by 18 U.S.C. 3582(c)(2), the Court has considered the relevant factors in USSG 1B1.10(b) and 18 USC 3553(a) and determined a sentence reduction in not appropriate." Although the Court of Appeals noted that a district court need not provide a detailed, written explanation analyzing every 3553(a) factor, some statement of the district court’s reasoning is necessary for the court to be able to meaningfully review its decision. Although a ruling on a motion to reduce is not the same as imposing a sentence, the court thought the reasoning behind requiring a brief statement of reasons at sentencing compels a similar requirement when deciding a motion to reduce. Here, the court did not supply any reasons for its decision. The court should at least address briefly any significant events that may have occurred since the original sentencing. If there have been none, some simple explanation to that effect will apprise both the defendant and the appellate court of that fact. Accordingly, the court remanded to the district court to provide a statement of reasons.

Detective’s search of a seized computer with specialized software did not exceed the scope of the search authorized by a warrant. United States v. Mann, ___ F.3d ___ (7^th Cir. 2010; No. 08-3041). In prosecution for possession of child pornography, the Court of Appeals held that a detective’s search of a seized computer with specialized software did not exceed the scope of the search authorized by a warrant. After receiving a report that the defendant had installed a clandestine video camera in a women’s locker room, police obtained a search warrant at the defendant’s residence authorizing them to search for "video tapes, CD’s, or other digital media, computers, and the contents of said computers, tapes, or other electronic media, to search for images of women in locker rooms or other private areas." Officers seized the defendant’s desktop computer, a laptop, and an external hard drive. Two months after seizure, a detective used software know as "forensic tool kit" ("FTK") to catalogue images on the defendant’s computer into a viewable format. The software would also flag files with an alert for images already known by law enforcement as containing child pornography. Upon running the application, the officer find images from the locker room, child pornography, and evidence that the external hard drive had been connected to the computer. Another two months later, the detective ran the same software search on the external hard drive. That search produced numerous flagged files, as well as 4 alerts for known child pornography images. The detective opened the files and discovered numerous child pornography images. The defendant argued that the search of these images violated the scope of the original warrant. The Court of Appeals noted that although the officer was limited by the warrant to a search likely to yiled "images of women in locker rooms and other private places," those images could be essentially anywhere on the computer. Officers were searching for "images" of women–a type of file that he could not search thoroughly for without stumbling on the defendant’s extensive child pornography collection. The court did conclude, however, that the officer should have obtained separate warrant to view the four "flagged" files. Once those files had been flagged, the officer should have known that the files contained child pornography, which would have been outside the scope of the warrant to search for images of women in locker rooms. There was no rapidly unfolding situation or searching a location where evidence was likely to move or change location, and there was no downside to halting the search to obtain a second warrant. Nevertheless, given the large amount of child pornography discovered which was within the scope of the search, the improperly viewed images had no effect on the defendant’s guilt.

Police has probably cause to search the defendant’s vehicle, notwithstanding Arizona v. Gant. United States v. Stotler, ___ F.3d ___ (7^th Cir. 2010; No. 08-4258). In prosecution for attempted possession of pseudoephedrine with intent to manufacture meth, the Court of Appeals affirmed the denial of the defendant’s motion to suppress evidence. Police has suspected the defendant of meth manufacturing for a very long time, and a warrant was issued for the defendant’s arrest in August of 2006. Officers executed the warrant a year later while the defendant was driving his truck, after setting up a controlled buy. The controlled buy did not occur as officers planned, but they arrested the defendant anyway on the outstanding warrant. The defendant was removed from his truck, handcuffed, and placed in the patrol car. His truck was then searched, including the glove box, where drugs were found. After the defendant went to trial, the Supreme Court decided Arizona v. Gant, and the defendant argued that Gant required suppression of the seized evidence. The Court of Appeals disagreed. Gant held that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. The Court of Appeals distinguished Gant, however, noting that in Gant there was no independent probably cause to search the car, the officer’s instead relying on an overly broad interpretation of the vehicle -search-incident-to-arrest rule. Here, the police had probably cause to believe the truck contained drugs based on the information they already had before stopping the defendant. Thus, there was no need to appeal to the search incident to arrest rule, and Gant was inapplicable.

Wisconsin offense of criminal trespass to a dwelling is a crime of violence. United States v. Corner, ___ F.3d ___ (7^th Cir. 2009; No. 08-1033). The Court of Appeals held that the Wisconsin offense of criminal trespass to a dwelling is a crime of violence. That statute provides: "Whoever intentionally enters the dwelling of another without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a breach of the peace, is guilty of a Class A Misdemeanor." Looking to the residual clause, the court concluded that entering a residence without permission, as in the case of burglary, could lead to an encounter with an occupant, and thereby could create a serious potential risk of injury. The same is true for an offender engaging in criminal trespass to a dwelling. Regarding whether the offense is similar in kind and degree to the enumerated offenses, the court concluded that the offense is similar to burglary. Both are purposeful property offenses that involve the deliberate entry into a dwelling without the permission of the owner. Both offenses are also violent and aggressive in nature because the perpetrator could encounter occupants of the dwelling and provoke confrontation. The fact that the latter offense does not include an intent to steal or to commit a felony does not lessen the risk of such an encounter. Consequently, the court held that criminal trespass to a dwelling is a crime of violence.

Prior conviction of a minor counts for career offender purposes so long as the juvenile was convicted as an adult. United States v. Gregory, ___ F.3d ___ (7^th Cir. 2010; No. 09-2735). The defendant had a prior conviction for robbery, committed when he was 15 years old. He was tried as an adult, however, although he served his sentence in a juvenile facility. The defendant argued that because he served his sentence as a juvenile, the offense should not count for career offender purposes. The court noted Note 7 to 4A1.2 provides, "[F]or offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment . . . or the imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant’s commencement of the instant offense are counted." The defendant argued that because he commenced his instant offense six years after his release on the prior conviction, and served his sentence as a juvenile, the conviction didn’t count. The court pointed out that a circuit split existed on the question of whether, in addition to distinguishing between adult and juvenile convictions, the Guidelines also call for distinguishing between adult and juvenile sentences, depending on whether the sentence imposed pursuant to the adult or juvenile code. The Seventh Circuit sided with those courts that look to whether the juvenile was convicted as an adult, not how he was sentenced. It found it difficult to believe that the Commission would have made such an important point about juveniles convicted as adults using such subtle linguistic signals. In the present case, there was no question the defendant was convicted as an adult, and that was what mattered for purposes of the career offender enhancement.

Indiana conviction for criminal recklessness was a crime of violence, where the defendant was convicted of the "intentional" portion of this divisible statute. United States v. Clinton, ___ F.3d ___ (7^th Cir. 2010; No. 09-2464). The offense in question outlaws bodily harm-risking acts performed "recklessly, knowingly, or intentionally. Only if the defendant was convicted for the "intentional" part of this "divisible" statute did he commit a crime of violence. Looking to additional court materials to determine which version the defendant committed, the court looked to the defendant’s plea colloquy where he admitted to stabbing his victim "too many times." Base on this statement, the court concluded that the defendant was convicted for intending both (1) the act of stabbing his victim multiple times; and (2) the act’s consequences. The court could not conceive of a situation where someone stabs an unarmed, already stabbed, bleeding man and not intend or know that bodily injury will result. Accordingly, the defendant’s sentence was properly enhanced.

Wisconsin offense of vehicular fleeing is a violent felony. United States v. Dismuke, ___ F.3d ___ (7^th Cir. 2010; No. 08-1693). The Court of Appeals held that the Wisconsin offense of vehicular fleeing is a violent felony. The Court of Appeals first held that the statute in question was "divisible," in that it can be committed in one of two ways: 1) fleeing or attempting to elude an officer by willful or wanton disregard of the officer’s signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians, and 2) increasing the speed of the operator’s vehicle or extinguishing the lights of the vehicle in an attempt to elude or flee. Because the statute was divisible, the court looked to the charging documents to determine which of the two versions the defendant committed, and it concluded he committed the second version of the offense. Next, under the residual clause, the court noted that for the offense to be a crime of violence it must (1) present a serious risk of potential risk o physical injury similar in degree to the enumerated crimes of burglary, arson, extortion, or crimes involving the use of explosives; and (2) involve the same or similar kind of "purposeful, violent, and aggressive" conduct as the enumerated crimes. In the present case, the defendant conceded that the offense satisfied the first criteria, so the court only considered the second question. Regarding the "purposeful" question, the court noted that the offense had a mens rea of "knowingly." Although the offense did not require purposefulness as to the infliction of physical harm upon another, this was not necessary. Only the act which creates that risk must be purposeful, and the statute required a "knowing" act of fleeing, sufficient to satisfy this prong. Regarding whether the offense was similarly "violent and aggressive," the court asked whether the conduct encompassed by the statutory elements of the crime, in the ordinary or typical case, presents a serious potential risk of physical injury and bears sufficient similarity–both in kind and degree of risk posed–to the conducted encompassed by the enumerated offenses. The court concluded that the offense had a similar potential for violence to the enumerated offenses, noting that taking flight in a vehicle calls the officer to give chase, and aside from any accompanying risk to pedestrians and other motorists, such flight dares the officer to needlessly endanger himself in the pursuit. Accordingly, the court concluded that the offense was a violent felony.

Wisconsin offense of second-degree sexual assault of a child is not a crime of violence. United States v. McDonald, ___ F.3d ___ (7^th Cir. 2010; No. 08-2703). Upon appeal of a finding that the defendant was a career offender, the Court of Appeals held that a Wisconsin conviction for second-degree assault of a child is not a crime of violence. The statute provides: "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony. Relying upon the pre-Begay case of United States v. Shannon, 110 F.3d 382 (7^th Cir. 1997), the district court held that the offense was a crime of violence. The Court of Appeals noted that in Shannon, the court rejected the argument that any sexual contact with a minor presented a serious risk of injury for purposes of the residual clause, and the crime did not categorically present a serious risk of injury. However, the court also held that the defendant’s particular violation of the statute qualified as a crime of violence because judicial records established that he had engaged in consensual sexual intercourse with a 13-year old girl, which always presented serious risks of injury such as pregnancy and medical complications accompanying pregnancy of a young girl. The court left open the question of whether a violation of the statute involving a 14- or 15-year old victim could be a crime of violence. In the present case, the government argued that the defendant’s intercourse with a 15-year old girl presented the same risks as that with a 13-year old. The Court of Appeals, however, refused to consider the age of the victim in the present case because, according to Woods, the statute in question is not divisible. The statute does not enumerate multiple categories off offense based upon age of the victim. In this regard, Shannon’s approach to the modified categorical approach is no longer valid in light of Begay and Woods. Finally, and most importantly, the Wisconsin offense is a strict liability offense. There is no mens rea with respect to the age of the victim. Begay requires "purposeful" conduct, and such is not present in a strict liability offense.

Wisconsin offense of first-degree reckless injury is not a crime of violence. United States v. McDonald, ___ F.3d ___ (7^th Cir. 2010; No. 08-2703). In prosecution for possession of a firearm by a felon, the Court of Appeals held that the Wisconsin offense of first-degree reckless injury was not a crime of violence because the mens rea of recklessness was not "purposeful" as required by Begay.

California offense of lewd or lascivious acts involving a person under the age of 14 not a violent felony. United States v. Goodpasture, ___ F.3d ___ (7^th Cir. 2010; No. 08-3328). In prosecution for being a felon in possession, the Court of Appeals held that the defendant was not an Armed Career Criminal because his California conviction for lewd or lascivious acts involving a person under the age of 14 (Cal. Penal Code 288(a)) was not a "violent felony." Section 288(a) provides, "Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." The Court of appeals noted that the prosecution need not show that the child was harmed (physically or mentally) or at risk of harm. Nor need the prosecution show that force or fraud was used or that one participant was older than the other. A person aged 13 or under may be convicted under the statute and, indeed, the petting in which many middle school students engage is a felony in California. The court first concluded that the offense did not have the use of force as an element. Tickling, kissing and fondling involve touching but are not ordinarily understood to involve "force." Although a child cannot give consent in California, the absence of consent does not turn a light touch into "physical force." Moreover, the kind of force referred to in the ACCA is the kind capable of causing bodily injury, not the kid that poses a psychological risk (the subject of 288(a)). Regarding whether it involved a "serious risk of physical injury," the court noted that Begay defines this term in the context of the enumerated offenses. Noting that the Supreme Court held that drunk driving (even when it results in death) and failure to report to prison are not violent or aggressive, it is even harder to classify kissing and fondling as aggressive. Secondly, because only adult convictions count as predicate offenses, the court considered whether the fact that the defendant had to be an adult when convicted of his offense made a difference. A 16-year old can be convicted of the offense (as the statute was written at the time of the offense) so the defendant was at least two years older than the victim. Such an age gap did not convert the offense into a violent felony, however, because the court had held that a two year age difference for a different statute did not convert the offense into a violent felony previously. Finally, the court refused to look at the actual age of the defendant and victim, as opposed to only the proof required by 288(a). The court only asks what the defendant was convicted of, not what he did in fact. And, because there was no argument that the statute was in any way divisible as defined in Woods, the government failed to show the offense as "generally committed" meets the criteria of Begay. Accordingly, the offense is not a violent felony.

Evidence must presented regarding cooking ratio before powder cocaine can be converted into crack weight for sentencing purposes. United States v. Hines, ___ F.3d ___ (7^th Cir. 2010; No. 08-3255). In prosecution for distribution of crack cocaine, the Court of Appeals reversed the district court’s relevant conduct finding, holding that the court improperly used a 1:1 ratio for cooking powder cocaine into crack. The defendant admitted to having bought 1.531 grams of powder cocaine, which the prosecution translated into the identical quantity of crack on the theory that when one cooks a gram of powder cocaine to make crack one ends up with a mixture of substance that has the identical weight. The Court of Appeals noted that the cooking process reduces the weight of the end product, and under ideal conditions the process yields a product which weighs 11% less than what was used at the outset. Morever, the percentage can be much higher for poorer cooks. Therefore, if the government wants the sentencing judge to infer the weight of the crack from the weight of the powder from which the crack was manufactured, it has to present evidence, concerning the cooking process, that would enable a conversion ratio to be estimated. Because no such evidence was presented, the court remanded to the district court for resentencing.

District court has discretion to discount the amount of future loss to its present value. United States v. Peel, ___ F.3d ___ (7^th Cir. 2010; No. 07-3933). In prosecution for bankruptcy fraud, the Court of Appeals held that the district court had discretion to discount the amount of loss to its present value. In a bankruptcy proceeding, the defendant attempted to blackmail his wife into dropping her claim under their marital settlement agreement for a $230,000 lump sum and $2500 a month for the rest of the defendants life. The district court calculated the defendant’s life-expectancy to be 17.5 years, and multiplied this number of months by the monthly payment amount, to come up with a figure of $525,000 payable over those years. He then added this amount to the lump sum for purposes of calculating the amount of intended loss. The defendant argued that the amount based upon the monthly payments should have been discounted to present value, since a smaller sum received today and conservatively invested would yield $525,000 over a period of 17.5 years. Although this is a common method for determining damages in civil cases, it is rarely used in criminal contexts. However, the court found no cases that refused to discount a future loss to present value if asked to do so. Thus, if a defendant presents credible evidence for discounting a stream of future payments to future value, the district court must consider it. In the present case, the defendant presented such expert evidence, demonstrating that the present value of the stream of future monthly payments owed to his ex-wife was $314,000. Had the district court used this amount, the defendant’s offense level would have been 2-levels lower. The court finally noted that although the district judge may use the present value of intended loss, it need not give controlling weight to the present-value calculation. Other factors may warrant the district judge using the higher figure, depending on the circumstances of the case. However, because the court was already remanding the case for other reasons, the district court should at least consider the present value argument upon resentencing.

Defendant’s sentence could not be enhanced for otherwise using a dangerous weapon during a robbery where he received a 924(c) consecutive sentence, even though the 924(c) conviction was based on firearms used by co-defendants and the improper enhancement was based upon a plastic BB gun used by the defendant. United States v. Eubanks, ___ F.3d ___ (7^th Cir. 2010; No. 09-1029). In prosecution for bank robbery and 924(c), the Court of Appeals held that the district court improperly enhanced the defendant’s sentence for "otherwise using" a dangerous weapon during a robbery, when he also received a 924(c) consecutive sentence. The defendant robbed a beauty salon with two co-defendants who were armed with semi-automatic pistols. The defendant carried only a plastic BB gun, which he used to beat a victim. The basis for the defendant’s 924(c) charge were the pistols possessed by his co-defendants. Additionally, the district court enhanced the defendant’s offense level for "otherwise using" a dangerous weapon during the robbery. The district court believed this to be permissible because 924(c) requires use of a firearm, and, according to 18 U.S.C. 921, a BB gun is not a firearm. Because the defendant could not have been sentenced under 924(c) for using the BB gun, his use of the weapon was not subsumed by the 924(c) sentence, and the four-level enhancement was proper. The Court of Appeals disagreed. The court noted that if a defendant is sentenced for using a firearm in furtherance of a violent crime under 924(c), the sentencing court may not enhance the defendant’s sentence under the guidelines for the same weapon and the conduct that underlie the 924(c) conviction. And the sentence under 924(c) accounts for all guns used in relation to the underlying offense. Although a defendant may receive both the 924(c) statutory sentence and a guideline enhancement if the enhancement and the statutory sentence are imposed for different underlying conduct, for enhancement purposes, real guns are treated as indistinguishable from fake guns. If the court were to adopt the district court’s reasoning, the defendant would be subject to an enhancement under the guidelines for otherwise using the plastic BB gun, but would have been precluded from such an enhancement if he had beat the store owner with a real firearm–an absurd result. Thus, the 924(c) sentence had to account for all the guns used, including the plastic BB gun.

Moving a victim from one room to another in a small retail shop does not constitute abduction, but rather only restraint. United States v. Eubanks, ___ F.3d ___ (7^th Cir. 2010; No. 09-1029). In prosecution for bank robbery, the Court of Appeals held that moving a victim from one room to another in a small retail shop did not constitute abduction, but rather only restraint. In two separate robberies, the defendant moved a victim from one room to another in small retail shops. The Guidelines provide for a four-point enhancement for abduction, but only two for restraint, and the defendant argued that his conduct was the latter. The district court applied the greater enhancement, concluding that moving an employee from one room to another was more serious than keeping all of the employees in the same room because it isolated the employee, increasing the likelihood that the employee would resist and thus increasing the chance of injury. The Court of Appeals rejected this reasoning, concluding that transporting the victims from one room to another is simply not enough for abduction. To find otherwise would virtually ensure that any movement of a victim from one room to another within the same building, without any other aggravating circumstances, would result in an abduction enhancement. While there may be situations in which an abduction enhancement is proper even though the victim remained within a single building, those facts were not present in this case.

Enhancement for distribution was not double counting where underlying conviction was for transportation of child pornography. United States v. Tenuto, ___ F.3d ___ (7^th Cir. 2010; No. 09-2075). In prosecution for transporting child pornography, the Court of Appeals held that it was not double counting to also receive a guideline enhancement for distribution. The Court of Appeals noted that when a district court relies on conduct that was necessary to satisfy an element of the defendant’s conviction yet uses that same conduct to enhance the defendant’s guideline range, double counting occurs. However, in the present case, no such double counting occurred. Transporting child pornography is a distinct offense from distributing child pornography. The two crimes are similar because a person who has distributed child pornography has likely transported it, and a person who transports it is likely to eventually distribute it. But a conviction for transporting child pornography does not necessarily entail distribution or an intent to distribute. Accordingly, there is no double counting when convicted of transporting and enhanced for distribution.

Enhancement for "use of a computer" in transporting child pornography was not double counting where underlying conviction was for transportation of child pornography. United States v. Tenuto, ___ F.3d ___ (7^th Cir. 2010; No. 09-2075). In prosecution for transporting child pornography, the Court of Appeals rejected the defendant’s argument that a guideline enhancement for "use of a computer" constituted double counting. The transportation statue makes it a crime to knowingly mail, transport, or ship "by any means, including by computer, any child pornography. The defendant argued that given this language in the statute, he could not also receive a guideline enhancement for use of a computer, for that constituted double counting. The Court of Appeals noted that it was not necessary that the defendant use a computer to commit the offense. The could have chosen the mail, fax, or any other means to transport the material. The fact the statute specifically articulates one means of transportation does not transform that means into an element of the offense. Therefore, there was no double counting.

Court may not impose a sentence below statutory mandatory minimum to account for time spent in custody on a separate, related charge where the defendant had completed his term of imprisonment on that charge. United States v. Cruz, ___ F.3d ___ (7^th Cir. 2010; No. 08-4194). In prosecution for selling illegal drugs, the Court of Appeals held that the district court could not sentence the defendant to less than the 10-year mandatory minimum sentence to account for 18 months the defendant served on a related state court conviction. The defendant had a prior conviction, considered as relevant conduct, for a state drug offense arising out of the same facts which prompted the federal prosecution. The defendant completed his 18-month term of imprisonment on that charge, but argued at his federal sentencing hearing that he should receive 18 months off his 10-year minimum to account for the time spent in state custody, pursuant to the Seventh Circuit’s decision in United States v. Ross, 219 F.3d 592 (7^th Cir. 2000). The district court refused. On appeal the government conceded error, but the Court of Appeals nevertheless affirmed. The court noted that only two instances allow a court to sentence a defendant to less than the statutory mandatory minimum, i.e., safety valve or a 3553(e) cooperation motion. Although a court may impose concurrent sentences for two or more crimes arising from the same course of conduct, the sentence on the federal charge must still not be less than the minimum. Moreover, in the present case, the defendant had completely served his time on the state charge, so there was nothing to run the federal sentence concurrent with. Ross did not support the defendant’s position. In Ross, the judge made the defendant’s sentence run concurrently with a state sentence for related conduct. He had served 34 months of his state sentence and the court held that the judge could deduct that number of months from the federal sentence so long as the combined length of the state and federal prison sentences was not less than the federal statutory minimum. The federal sentence was for a gun offense in violation of 18 U.S.C. 924, which provides that certain violators "shall be imprisoned . . . not less than fifteen years," and the court pointed out in Ross that "the statute does not specify any particular way in which the imprisonment should be achieved." In the present case, however, the statute provides that the offender "shall be sentenced to a term of imprisonment which may not be less than 10 years." The language does not permit a shorter sentence to be imposed. Finally, the defendant in Ross had not finished his federal term. Accordingly, the district court was required to impose the 10-year sentence and could not discount the time spent in state custody.

Before varying upward based on additional crimes the defendant committed, a district court should analyze what the guideline range would be had the defendant actually been charged with the other crimes to avoid unwarranted disparity. United States v. Kirkpatrick, ___ F.3d ___ (7^th Cir. 2009; No. 09-2382). After the defendant was arrested for being a felon in possession, the defendant confessed to four murders and for placing a contract hit out on the federal agent investigating his case. After 200 hours of investigative work, authorities concluded that the defendant had lied about everything. The defendant’s guideline range was 37 to 46 months, but the judge sentenced him to 108 for lying to the authorities, close to the 120-month maximum. The defendant argued that an extra five years for his conduct was too much. The Court of Appeals found that the district court appeared to select the sentence arbitrarily. Leaping close to the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere–not only because this overpunish braggadocio, but also because it leaves little room for the marginal deterrence of persons whose additional deeds are more serious (for example, actually putting out a contract on an agent’s life). Before Booker, departures had to be explained in the Guidelines’ own terms. Thus if the district court’s reason for an upward departure was an additional crime, the departure could not exceed the incremental sentence that would have been appropriate had the defendant been charged with, and convicted of, that additional crime. Although the Guidelines are now advisory, a judge must still start by using the Guidelines to provide a benchmark that curtails unwarranted disparity. When a judge believes that extra crimes justify extra punishment, it is wise to see how much incremental punishment the Sentencing Commission recommends. In the present case, applying all the Guideline enhancements assuming the defendant had been convicted of lying to federal agents, his guideline range would have been 57 to 71 months. For his ultimate sentence to be within a guideline range, the defendant would have had to actually set out to have the case agent murdered. Booker means a guideline range of 57 to 71 months is only a non-conclusive recommendation. But before exercising discretion the judge should know what the recommendation is, and thus how the defendant’s sentence will compare with the punishment of similar persons elsewhere. Accordingly, the court remanded the case for re-sentencing.

An 851 Notice of Enhancement which mislabeled a misdemeanor as a felony and incorrectly identified the defendant’s felony was harmless error. United States v. Lane, ___ F.3d ___ (7^th Cir. 2010; No. 09-1057). In prosecution for drug offenses, the Court of Appeals held that errors in the 851 notice were harmless. The government mislabeled a misdemeanor as a felony and misidentified the defendant’s felony. The court noted that the two main purposes of an 851 information are to give the defendant an opportunity to contest the accuracy of prior convictions and to inform his decision on whether to plead guilty or proceed to trial. Here, the government correctly identified the dates, jurisdiction, and classification of two of the priors as felonies, which put the defendant on notice that he faced a mandatory life sentence. This was a case of careless mislabeling that was harmless.

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Last modified: 07/03/08