Seventh Circuit Week in Review: Machine Guns and Cocaine (And What Thanksgiving Is Complete Without Those?)

The Seventh Circuit had three new opinions in criminal cases in this holiday-shortened work week, with the government winning on all of the major issues in each appeal. 

In the first, United States v. Carmel (No. 07-3906), the Seventh Circuit (per Judge Manion) affirmed the defendant’s conviction for possessing an unregistered machine gun in violation of 26 U.S.C. § 5861.  In addition to raising some case-specific issues relating to a search warrant, the defendant also argued that § 5861 was invalid in light of 18 U.S.C. § 922(o), which criminalizes possession of machine guns.  In essence, Carmel argued that § 5861, which punishes people for not registering their machine guns, makes no sense when § 922(o) effectively precludes registration.  The Tenth Circuit bought this argument in United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), but it was subsequently rejected in seven other circuits.  And now the Seventh Circuit makes eight.  It’s not clear to me, though, why the government would ever charge a defendant like Carmel under § 5861 when § 922(o) is also applicable and carries the same maximum penalty — why not render the Dalton issue moot by using § 922(o) exclusively in these cases?

Next, in United States v. Tatum (No. 07-3015), the court (per Judge Williams) affirmed the defendant’s conviction on various drug and weapons charges, rejecting the defendant’s argument that a proper foundation had not been laid for the admission into evidence of three baggies of cocaine.  Although the police officers who collected the baggies from Tatum had little independent recollection of the circumstances, the court observed, “The government does not need to prove a ‘perfect’ chain of custody, and any gaps in the chain ‘go to the weight of the evidence and not its admissibility.'”

Also in Tatum, the court flagged (but did not resolve) an interesting question relating to crack cocaine sentencing: whether a defendant applying under 18 U.S.C. § 3582 for retroactive application of last year’s reduction in crack penalties can also obtain relief under Kimbrough v. United States, 128 S. Ct. 558 (2007), in which the Supreme Court indicated that judges were not bound by the crack sentencing guideline even in routine cases.

Finally, in United States v. Singleton (No. 07-3399), the Seventh Circuit (per Judge Williams) affirmed the district court’s calculation of the defendant’s sentence under the guidelines, but remanded to give the district court an opportunity to resentence outside the guidelines in light of Kimbrough.  The only matter really at issue in the appeal was the district court’s determination of the amount of crack that should be attributed to Singleton for sentencing purposes, much as in the Fox case that I blogged about a couple weeks ago.  But Singleton even more starkly illustrates what is wrong with the relevant conduct provisions of the guidelines.

Singleton pled guilty to selling 6.6 grams of crack to a police informant.  At sentencing, though, the district court judge found that Singleton was actually responsible for distributing 5,124 grams, resulting in a sentence of more than seventeen years in prison under the guidelines.  Because the judge determined that all of Singleton’s sales to his friend McCrady over the course of six years were part of the same “course of conduct” as the single sale to the police informant, the many thousands of grams sold to McCrady were required to be treated as “relevant conduct” under the guidelines, meaning that Singleton was sentenced as if he had been convicted of selling, not 6.6 grams, but 5,124 grams.  And because amount of drugs sold is normally the single most important determinant of sentence length under the guidelines, this was truly a case of the tail (relevant conduct) wagging the dog (what the defendant was actually convicted of doing).  And, of course, relevant conduct is determined, not by a jury beyond a reasonable doubt, by a judge using the lower preponderance of the evidence standard.  Thus, all of this has the appearance of a pretty dramatic circumvention of Singleton’s constitutional rights.  If the government really thought it appropriate to punish Singleton for the sales to McCrady, it should have charged those sales precisely as it charged the 6.6 grams.

To be sure, the earlier references to Kimbrough remind us that the sentencing guidelines, including the relevant conduct provisions, are now officially “advisory,” rather than mandatory.  But that doesn’t really cure the problem.  First, the Supreme Court has indicated that the guidelines sentence must still be calculated first in all cases.  After a district court judge has invested all the effort necessary to determine relevant conduct — and this may require, as in Singleton, a mini-trial of sorts — the judge hardly seems likely to disregard that relevant conduct in deciding what sentence to impose.  Second, the Supreme Court’s decision in Rita v. United States (as well as abundant circuit-level precedent) makes clear that just applying the guidelines sentence will always be the path of least resistance for the busy district court judge.  Once the guidelines sentence has been calculated, the judge need go through little or no further analysis or explanation before imposing the guidelines sentence, and (assuming the guidelines sentence has been correctly calculated) the risks of reversal on appeal are virtually nonexistent.  Finally, even after Kimbrough, it is far from clear that a district court judge has the power to disregard relevant conduct on the basis that using it would undermine the defendant’s constitutional rights.  In short, the “wag the dog” problem exemplified by Singleton remains a significant concern even under the so-called advisory guidelines.

How can the problem be addressed?  There are many possibilities.  First, Congress could convert the guidelines back to mandatory and implement a requirement for jury fact-finding beyond a reasonable doubt for relevant conduct.  Second, the Sentencing Commission could amend the guidelines so that relevant conduct receives less weight than conduct that was actually charged and proven beyond a reasonable doubt at trial (or as to which the defend formally pled guilty).  Third, the Supreme Court (or, pending a Supreme Court decision, the circuit courts) could make clear that a sentencing judge’s disagreement with the existing relevant conduct guideline and/or a sentencing judge’s desire to ensure that a defendant’s constitutional rights are not circumvented constitute permissible grounds for a below-guidelines sentence.  Finally, the courts and/or the Commission could narrow the scope of what counts as relevant conduct.  For instance, in Singleton, the Seventh Circuit held that the sales to McCrady were relevant to the sale to the informant because all of the sales involved the same seller, the same drug, and the same location.  But, in order for the sales to count as a single course of conduct, even more similarity might have been required, e.g., same supplier, same means of taking orders, same quantities (the individual sales to McCrady were one to two ounces each, which is much greater than the 6.6 grams sold to the informant), and/or temporal overlap (the final sale to McCrady was made at least two months before the sale to the informant). 

The Fox case referenced above provided a nice example of the Seventh Circuit employing a narrow interpretation of relevant conduct and requiring some real analytical rigor from the sentencing judge before increasing the amount of drugs attributable to a defendant.  Singleton seems rather less demanding (albeit with respect to a somewhat different dimension of the relevant conduct problem).  To be sure, Singleton’s approach seems perfectly consistent with Seventh Circuit precedent, illustrating the unhappy fact that any effort to fix the “wag the dog” problem at the circuit level will run into a heavy weight of existing case law.  As a result, it may be too much to expect the circuit courts to address the problem without leadership from Congress, the Commission, or the Supreme Court.

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