Seventh Circuit Week in Review: Sentencing Thought Crimes

The Seventh Circuit had four new opinions in criminal cases last week.  Two dealt with sentencing, one with interrogation, and one with a search.  I’ll cover the cases in that order.

In United States v. England (No. 08-2440), the defendant was charged with being a felon in possession of a firearm.  While being held pending trial, England learned that his brother-in-law Robert was cooperating with the police.  In telephone conversations with his father (which were apparently recorded by the police), England expressed feelings of violent rage against the brother-in-law, saying at one point, “[G]o relay a message to Robert [that if he] shows up to court, when I walk outta prison in fifteen years, I’m ‘onna [expletive] murder his [expletive].” 

After being convicted of the original charge, plus three new obstruction-of-justice types of charges, England was sentenced to 262 months in prison.  An earlier appeal and remand for resentencing resulted in a new sentence of 210 months.  Curiously, along the way, the sentencing judge “found” that England would have committed the crime of attempted murder of Robert or one of the other witnesses had he not been in custody before trial.  Indeed, this finding seemed to play a determinative role in the selection of a sentence.  From the standpoint of substantive criminal law, this was a strange move.  As the sentencing judge acknowledged, England took no “substantial step” — in fact, no step of any kind — towards the accomplishment of the murder that he supposedly intended.  There is a sense, then, in which England was punished based on little more than evil thoughts.  And, as any first-year law student will tell you, it is black-letter criminal law that you cannot be punished for thoughts alone.

After England appealed his new sentence, the Seventh Circuit (per Judge Flaum) again vacated and remanded for resentencing.  The court emphasized the need for sentencing facts to be found by at least a preponderance of the evidence.  Here, the evidence did not adequately support the finding that England would have committed attempted murder had he been released on bond.  Robert testified that he did not feel threatened by England’s statements, and he and other family members indicated they believed that England was just “blowing off steam.”

It is good to see district court fact-finding subjected to rigorous scrutiny at the appellate level; it sometimes seems that appellate courts use the deferential standard of review for fact-finding as an excuse to avoid real engagement with the evidentiary record below.  But, apart from the quality of the lower court’s fact-finding, I wish the Seventh Circuit had also commented on the deeper question of why and how “findings” of hypothetical crimes that the defendant might have committed are relevant to the determination of a sentence.  Now, of course, it is perfectly appropriate to increase sentence length under incapacitation theory based on the expectation that a defendant will commit additional crimes after sentencing.  And that may have been what the sentencing judge was doing in England.  But the record (at least as quoted in the Seventh Circuit’s opinion) suggests a different interpretation: England was not being prevented prospectively from committing additional crimes after sentencing, but was being punished retrospectively for a crime he would have liked to (but did not) commit before sentencing.  Again, this has a flavor of punishment for thoughts alone.  This would not necessarily be beyond justification, but it might have been helpful for the Seventh Circuit at least to flag such punishment as something that requires more careful explanation than seems to have been provided by the lower court in England.  

The remaining cases from last week warrant less discussion.

In United States v. Scott (No. 08-2579), the defendant was convicted of crack cocaine trafficking.  Since Kimbrough v. United States, 128 S. Ct. 558 (2007), district court judges have been permitted to sentence below the guidelines range in crack cases in light of the unjustified disparity in the guidelines’ treatment of crack and powder cocaine.  In Scott’s case, though, the sentencing judge declined to close the crack-powder disparity.  On appeal, the Seventh Circuit (per Judge Ripple) affirmed that sentencing judges are not required to use the discretion they have under Kimbrough.  Nor are they necessarily required to provide a specific response to a defendant’s policy argument that there is no good reason to treat crack and powder differently.

In United States v. Montgomery (No. 08-1690), the defendant was convicted of being a felon in possession of a firearm based, in part, on a statement he gave to a federal agent after invoking his right to remain silent.  On appeal, Montgomery argued that the statement should have been suppressed, raising two main arguments.  First, he argued that the federal agent made a false promise that he would be treated leniently if he gave a statement.  There was no dispute that the agent provided erroneous information to Montgomery: he indicated that Montgomery would get less than ten years, when, in fact, Montgomery’s criminal history was sufficient to trigger a fifteen-year mandatory minimum.  But this “promise” (which may have reflected an innocent mistake on the part of the agent) was not tied to Montgomery confessing; thus, the Seventh Circuit (per Judge Flaum) decided that it did not require suppression of Montgomery’s statement.

Second, Montgomery argued that the agent should not have questioned him after he invoked his right to remain silent.  The court ruled, however, that the agent appropriately initiated a conversation with Montgomery on topics other than the charge as to which Montgomery had invoked his right; it was Montgomery himself who voluntarily steered the conversation to the latter topic.  Under such circumstances, suppression of the statement was not required.

Finally, in United States v. Gonzalez (No. 08-1238), the defendant was arrested after participating in a drug deal near his house.  Police then entered Gonzalez’s home with the consent of his sister and mother.  From outside the door, police observed more drugs in Gonzalez’s bedroom.  They entered the bedroom to secure the contraband that was in plain sight.  While there, one officer looked inside a closed shoebox and found more drugs.  On appeal after his conviction, Gonzalez argued that the latter evidence should have been suppressed as obtained in violation of his Fourth Amendment rights.  The Seventh Circuit (per Judge Bauer) affirmed on the basis of the “independent source doctrine.”  After the search of Gonzalez’s room, police obtained a search warrant without mentioning the contents of the shoebox.  The lower court found that police would have sought and obtained the warrant even if the shoebox had not been opened.  Because the finding was not clearly erroneous, the Seventh Circuit held that the requirements of the independent source doctrine were satisfied.

This Post Has 2 Comments

  1. Bruce Boyden

    Curiously, along the way, the sentencing judge “found” that England would have committed the crime of attempted murder of Robert or one of the other witnesses had he not been in custody before trial.

    Maybe the judge is a “pre-cog.”

  2. Joe Campoli

    As to the last case you discussed, the independent source doctrine has been stretched by our Florida courts so often that the exclusionary rule, at least at the trial level, is almost a relic. Sad, but true.

    It is rather amazing the incredible eyesight many of these officers seem to have from “open doors” — is there any way to compel an eye exam to test the veracity of their ability to see through things?

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