Seventh Circuit Week in Review, Part I: Sentencing Issues

The Seventh Circuit had a busy week, with seven new opinions in criminal cases.  In this post, I will discuss just the three cases that focused on sentencing issues; a later post will cover the other cases.

In United States v. Alldredge (No. 08-2076), the court considered the reach of §2B5.1(b)(5) of the United States Sentencing Guidelines, which increases sentence length in counterfeiting cases if “any part of the offense was committed outside the United States.”  In return for forging forty checks for a Nigerian, Alldredge received $3,000 in fake currency from Canada.  She had not expected to receive fake currency, but decided to spend it anyway, resulting in her conviction for distributing counterfeit currency.  The district court increased her sentence based on the international dimension of the case.  However, as the Seventh Circuit (per Chief Judge Easterbrook) pointed out, none of Alldredge’s conduct occurred outside the United States, and the Guidelines generally make a defendant responsible only for the foreseeable conduct of others.  She did not anticipate that her international connections would provide her with counterfeit currency; indeed, she was in a sense a victim of their crime.  Bearing in mind that Alldredge was only convicted of distributing counterfeit currency (and not check forgery), no part of her offense was committed outside the United States, entitling her to a remand and resentencing.

In United States v. House (No. 07-4043), the court considered a number of sentencing issues, the most difficult of which was whether the defendant qualified for a sentence increase based on obstruction of justice.  The Seventh Circuit (per Judge Flaum) affirmed House’s sentence, including the obstruction enhancement.  The evidence indicated at most that House had asked a friend, Brown, to locate one of the government’s witnesses, Avery, and ask him not to testify.  There was no claim that House or Brown attempted to intimidate Avery, only that Avery was asked not to testify.  But the Seventh Circuit held that obstruction is not limited to intimidation; it also includes “intentionally engaging in conduct having a natural tendency to suppress or interfere with the discovery of truth.”  And this test was indeed satisfied by Brown’s mere request that Avery not testify.  The case thus provides a nice illustration of how low the bar is for an obstruction enhancement in the Seventh Circuit.

Finally, in United States v. Busara (No. 07-3857), the court (per Judge Ripple) also affirmed a defendant’s sentence.  Unlike Alldredge and House, this case did not involve the district court’s calculation of the applicable sentencing guidelines range, but, rather, the district court’s decision not use its power to impose a sentence below the range.  While a sentence (inside or outside the range) may be overturned if it unreasonable, the Seventh Circuit recognizes a presumption of reasonableness for within-range sentences, making it difficult for a defendant to have a within-range sentence vacated on appeal.  Although it was arguable that the district court in Busara had placed too much emphasis on one particular fact (that Busara, not his codefendant, had struck the fatal blow that killed their victim), Busara could not show that his 480-month sentence was an abuse of discretion.

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