Nov

15

Seventh Circuit Criminal Case of the Week: Yes, Eco-Terrorists Are Real Terrorists

Posted by: Michael M. O'Hear | November 15, 2009 | 1 Comment

On the night of July 20, 2000, Katherine Christianson, Bryan Rivera, and two companions damaged or destroyed more than 500 trees at a United States Forest Service facility.  Was it a prank?  A dare?  A harvest for the thneed industry? No, Christianson and Rivera were members of the eco-terrorist group Earth Liberation Front, and their target was the Forest Service’s genetic-engineering [...]

Oct

21

Federal Sentencing and the Lack of Theory in Criminal Justice

Posted by: Chris Donovan | October 21, 2009 | 1 Comment

Defendants in federal criminal cases often cooperate with the government to get their sentence reduced, especially when facing an extremely high statutory mandatory minimum (it is not uncommon for federal defendants to face mandatory minimums of ten years or higher).  In these cases, to get below the mandatory minimum, the government must file a motion to [...]

Oct

19

Seventh Circuit Criminal Case of the Week: Good Enough for Government Work

Posted by: Michael M. O'Hear | October 19, 2009 | Leave a Comment

Under 21 U.S.C. § 841(b)(1)(A), certain drug offenders face a mandatory sentence of life imprisonment if they have two prior drug felony convictions.  As befits such a draconian statute, special procedural protections have been adopted to ensure that the mandatory minimum does not take defendants by suprise at sentencing.  Thus, 21 U.S.C. § 851(a)(1) requires [...]

Oct

11

Seventh Circuit Criminal Case of the Week: Halfway Houses Back on the Menu

Posted by: Michael M. O'Hear | October 11, 2009 | Leave a Comment

If Congress makes an obvious error in drafting a statute, can a court correct that error by effectively adding something to the statute that is not there?  Such was the interesting jurisprudential question the Seventh Circuit confronted last January in United States v. Head, 552 F.3d 640 (2009).  Because of a mix-up with statutory cross-references, the [...]

Oct

4

Seventh Circuit Criminal Case of the Week: Reversing a Liddell Progress on Crack Sentencing

Posted by: Michael M. O'Hear | October 4, 2009 | 1 Comment

The Seventh Circuit continues to struggle with the question of what it means for the federal sentencing guidelines to be “advisory.”  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory guidelines system violated the Sixth Amendment.  The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory.  Then, [...]

Sep

19

Seventh Circuit Criminal Case of the Week: What Can Be Inferred From a Lie?

Posted by: Michael M. O'Hear | September 19, 2009 | Leave a Comment

When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).
Edwards was arrested [...]

Sep

6

Seventh Circuit Criminal Case of the Week: Ink Blots, Allocution, and Error

Posted by: Michael M. O'Hear | September 6, 2009 | Leave a Comment

The Seventh’s Circuit opinion last week in United States v. Noel (No. 07-2468) reveals a substantial division over how to handle violations of a defendant’s right to address the court at sentencing.  As now codified in Federal Rule of Criminal Procedure 32, the Supreme Court has held that defendants must be personally invited to address the [...]

Aug

30

Seventh Circuit Criminal Case of the Week: Crediting the Lost Opportunity to Serve a Concurrent Sentence

Posted by: Michael M. O'Hear | August 30, 2009 | Leave a Comment

Since separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime.  But what if federal prosecution is delayed, and [...]

Aug

22

Seventh Circuit Criminal Case of the Week: Of Lifelines and Waiver

Posted by: Michael M. O'Hear | August 22, 2009 | Leave a Comment

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack.  An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.
Such does not seem to be the case with the lawyer in United States v. Foster [...]

Aug

9

Seventh Circuit Criminal Case of the Week: What Is a Crime of Violence?

Posted by: Michael M. O'Hear | August 9, 2009 | Leave a Comment

The Armed Career Criminal Act and § 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence.  It’s clear that certain prior convictions qualify (e.g., rape and armed robbery), but there are a surprisingly large number of offenses in the gray [...]

Aug

2

Seventh Circuit Criminal Case of the Week: When Sentencing, Don’t Just Split the Difference

Posted by: Michael M. O'Hear | August 2, 2009 | 3 Comments

Splitting the difference is a tried and true tactic for resolving disputes.  I use this tactic all the time when I mediate conflict between my kids.  I also used it with great success to settle cases in practice.  But is splitting the difference an acceptable way for judges to resolve disputes? 

Jul

26

Seventh Circuit Criminal Case of the Week: Small Progress on Crack Sentencing

Posted by: Michael M. O'Hear | July 26, 2009 | Leave a Comment

It has been widely recognized for years that federal sentences for the crack version of cocaine are unjustifiably harsh relative to sentences for the powder version.  As far back as 1995, the United States Sentencing Commission — a body not generally known for its lenience — called for equalization between crack and powder sentences.  However, [...]

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