Seventh Circuit Week in Review, Part II: Piling on the Mandatory Minimums

In addition to the two cases covered in my prior post, the Seventh Circuit had four new sentencing opinions last week.  Only one warrants any extended discussion.  And that case, United States v. Easter (Nos. 07-2433, 2435, 3118, 3203, 3540 & 3628), actually presented several different issues raised by multiple defendants.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions.  One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense.  The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear).  McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack.  However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes.  (For an earlier post on this topic, see here.)  Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.

A second codefendant, Davis, challenged the enhancement of his sentence under a provision of the guidelines that deals with “reckless endangerment during flight.”  While running away from the police, David attempted to pull a gun out of his pocket, but dropped it.  The Seventh Circuit held this counted as “reckless endangerment”: “simply reaching for a loaded gun is enough to create a substantial risk of serious bodily injury to another person.”

A third codefendant, McSwain, attempted to challenge the application to him of both a twenty-year mandatory minimum for the drug-dealing conspiracy and a consecutive five-year term under 18 U.S.C. §924(c) for possessing a gun in furtherance of a drug crime.  I say “attempted” because McSwain’s lawyer bailed out on him, asserting in an “Anders” brief that there was no nonfrivolous basis for an appeal.  This was a remarkable move by the lawyer, for the “piling on” issue was one of first impression in the Seventh Circuit and had recently been decided in a defendant’s favor in the Second Circuit.  Even more remarkably, the court in Easter agreed with McSwain’s lawyer that the argument was frivolous.  What a rebuff to the Second Circuit: not only was its reasoning rejected, but the reasoning was actually characterized by a sister circuit as frivolous!

Here is McSwain’s perfectly straightforward textual argument.  Section 924(c) is prefaced by these words: “Except to the extent that a greater minimum sentence is otherwise provided by this section or by any other provision of law [apply the five-year mandatory minimum].”  McSwain received a greater minimum sentence (i.e., twenty years) that was provided by another “provision of law” (i.e., the drug statute).  Thus, by operation of the “Except Clause,” the 924(c) five-year sentence did not apply.

To be sure, one might plausibly construe the Except Clause only to reference other mandatory minimums triggered by the possession of a firearm.  But the statute does not clearly say that.  At most, there is an ambiguity here, which (pursuant to the Rule of Lenity) should be resolved in the defendant’s favor. 

Moreover, even if one does not find the textual argument as persuasive as I do, the issue should not have been decided in an Anders setting, with McSwain’s own lawyer not trying to win the appeal for his client, but rather trying to get out of the case.  An issue of first impression that has generated a circuit split elsewhere merits true adversarial testing, with able and committed advocates on both sides of the question.

In United States v. Cano-Rodriguez (No. 07-3721), the defendant, a Mexican citizen in this country illegally, was imprisoned on a state-court conviction, and then prosecuted upon his release in federal court for being in the United States without permission.  After his conviction, his sentence was enhanced under a provision of the sentencing guidelines that applies where a defendant commits an offense “while under any criminal justice sentence.”  Cano-Rodriguez then appealed the application of this enhancement.  The Seventh Circuit indicated, however, that his federal immigration offense was a continuing offense that “track[ed]” him from the time he entered the country illegally through his time in state prison.  Under this theory, it would seem that he had indeed committed the immigration offense “while under” the state sentence.  In any event, Cano-Rodriguez had not properly preserved the issue, and the Seventh Circuit held that his sentence enhancement did not qualify as “plain error.”  Thus, the issue remains open for litigation in the Seventh Circuit if properly preserved in a future case, although defendants have not fared well on this sort of claim in other circuits.

In United States v. Strode (No. 08-1611), the defendant challenged the application of various guidelines to him, but the Seventh Circuit rejected these challenges on various case-specific factual grounds.

Finally, in United States v. Hagerman (No. 07-3874), the court summarily rejected a grab-bag of different arguments made by an environmental defendant, including that he should not have been given a prison sentence because:

the damage he caused to the environment could not be quantified, . . . he made “considerable” contributions to his community, . . . his family relies on him for support, and . . . imprisonment will make paying restitution difficult.

Although I might have liked to see a little more discussion of these sentencing issues, they are the sorts of issues that are unlikely to get much traction in the aftermath of the Supreme Court’s Rita decision.

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