The Seventh Circuit had four new opinions in criminal cases last week.  The court did not break new ground in any of them, but one raises some interesting sentencing issues.  I’ll first discuss that case, United States v. Wise (No. 08-2794), and then briefly summarize the other three, which dealt with the definition of “crack cocaine,” disparity in the sentencing of codefendants, and the constitutionality of a gun possession statute, respectively.

First, the Wise case arose out of terrible tragedy.  Wise left a loaded firearm on a window ledge in his girlfrend’s apartment, where it could be reached by children.  You can already guess where this is headed: a four-year old left unattended in the room for a few minutes picked up the gun, the gun discharged, and a two-year old was killed.  Wise was charged in Illinois state court with reckless endangerment of a child resulting in the child’s death.  Wise, however, was a felon, and so his possession of the firearm was a federal crime, too.  State charges were apparently dropped, as federal prosecutors charged Wise with the gun possession crime.  Wise pled guilty.  The sentencing judge decided to sentence Wise above the recommended sentencing guidelines range and give Wise the maximum, ten years.  Wise challenged his sentence on appeal, and the Seventh Circuit (per Judge Evans) affirmed. 

I have three overlapping concerns about the way the prosecution and sentencing played out.  First, the case nicely illustrates one of the problems with the common practice of federalizing state prosecutions using the felon-in-possession law.  A vast range of cases are swept into federal court this way, from the very serious (e.g., felon uses gun in commission of serious violent crime) to the relatively trivial (felon keeps a gun safely stored at home for hunting purposes).  Because the statute makes no distinctions, we have to rely on the sentencing guidelines to ensure some measure of proportionality in the treatment of such dissimilar cases.  But the guidelines can only do so much to make the relevant distinctions.  Thus, in Wise, the sentencing court increased the defendant’s sentence (and the Seventh Circuit upheld the increase on appeal) based on § 2K2.1(b)(6), which applies when a defendant “possessed . . . any firearm . . . in connection with another felony offense.”  The courts reasoned that Wise possessed his gun “in connection with” the state felony of recklessly endangering a child resulting in death.  Understood literally, I can see how one might conclude that (b)(6) applies to Wise’s crime, but this sort of passive, accidental killing is not what first comes to mind when one reads the provision; the drafters of (b)(6) were probably thinking instead of armed robbers, burlgars, drug dealers, and the like.  There is a bit of a square peg/round hole feel to the court’s analysis.  I think it would have been preferable to proceed with the state prosecution for a crime that much more clearly and directly gets at what made Wise’s conduct truly blameworthy in a moral sense, that is, the reckless endangerment/death of a child crime.  How much more fitting for Wise to bear a conviction for this crime than the much blander and more morally neutral “felon in possession of a firearm.”

Second, although Wise committed a serious crime and deserved a serious sentence, I have a hard time seeing this as a statutory maximum sort of case, especially where the sentencing guidelines themselves — no one’s idea of “soft on crime” — do not recommend the maximum.  On appeal, Wise argued that the sentencing judge allowed his decision to be controlled by his visceral, emotional response to a terrible tragedy.  Although the Seventh Circuit found nothing unreasonable in the sentence, I can see why Wise thought the judge let gut-level emotions overwhelm his assessment of the case.  In the interests of proportionality, the statutory maximum should normally be reserved for the most reprehensible conduct that is covered by the statute.  Tragic consequences are part of the calculus, but only a part; intentions also matter.  That’s why drunk drivers who kill are not, and should not, be considered murderers; no matter how tragic the accidents they cause, they are still just that, accidents, which makes them less blameworthy than intentional killings.  Wise himself seems much closer to the drunk driver than the hitman.  There is no reason to think that he intended, expected, or even consciously considered the possibility that someone would die because of his careless placement of the loaded gun.  Within the great range of reprehensibility of conduct that is prosecuted under the felon-in-possession statute, I think the maximum should be reserved for cases involving more intentional harm.  (Reprehensibility comparisons, though, are admittedly difficult with a statute that covers such disparate conduct — once again underscoring why it would be preferable to prosecute Wise under a statute that more narrowly focuses on what he did wrong.)

Third, I am troubled by the sentencing judge’s refusal to give Wise credit for “acceptance of responsibility.”  Wise pled guilty, and the “acceptance” guideline (§ 3E1.1) indicates that defendants who plead guilty should normally be given a sentence reduction on that account.  Section 3E1.1 reflects a particular policy trade-off by the Sentencing Commission; one might disagree with the policy choice, but it is now a longstanding feature of the federal sentencing system.  (I have an article all about this at 91 Nw. U. L. Rev. 1507.)  Yet, the sentencing judge declined to give Wise credit because, in the words of the Seventh Circuit, it “would not send the right signal in terms of deterrence.”  Never mind for now how dubious the proposition is that the deterrent effect of Wise’s sentence would be reduced one iota by shaving a year or two off its length.  Instead, consider that the judge effectively substituted his own views for those of the Sentencing Commission as to the appropriateness of trading off deterrence for the benefits of recognizing acceptance of responsibility and rewarding guilty pleas.  Of course, judges are permitted to reject Commission policy choices now under the Supreme Court’s decision in Kimbrough v. United States.  But Kimbrough does not say judges have unlimited discretion in this regard; indeed, the Court seemed to demand some very good and unusual reasons for doing so.  I am disappointed, then, that the Seventh Circuit upheld this aspect of Wise’s sentence in little more than conclusory fashion.

Now for the other three cases from last week.

In United States v. Stephenson (No. 06-2574), the defendant drug dealer received an enhanced sentence because he dealt crack, and not some other form of cocaine.  On appeal, he argued that the government did not satisfy its burden of proof in showing that the drugs were crack.  The case nicely highlights how uncertain is the legal dividing line between crack and other (less seriously punished) forms of cocaine.  As the Seventh Circuit observed, “[N]o chemical test can distinguish between crack and cocaine base.”  Lacking a workable scientific definition of crack, the Seventh Circuit has indicated that “a sentencing judge must determine whether a defendant sold ‘crack,’ as those who buy and sell in the market generally understand the term.”  Using that definition, the Seventh Circuit (per Judge Rovner) affirmed Stephenson’s enhanced sentence.

In United States v. Woods (No. 07-4074), the Seventh Circuit (per Judge Evans) affirmed the conviction and sentence of the getaway car driver in a bank robbery.  Numerous issues were raised on appeal, but only one caught my eye: Woods argued that his sentence of 220 months consituted an unwarranted sentencing disparity in comparison to the 38 months received by one of his fellow robbers who actually played a more important role in the crime by going into the bank and demanding money.  The Seventh Circuit summarily rejected Woods’ argument: “[W]e do not view a discrepancy between sentences of codefendants as a basis for challenging a sentence.”  Still, this particular disparity is an unusually stark one, and illustrates why it may not be appropriate for the court to adhere in so rigid a fashion to the pre-Booker rule that codefendant disparity cannot be argued on appeal as a basis for a reduced sentence.  At the very least, the case should raise questions about the aspects of the guidelines that produced the disparity: the career criminal guideline, the substantial assistance guideline (the codefendant testified against Woods), and, yes, the acceptance of responsibility guideline. 

In United States v. Jackson (No. 07-3849), the court (per Chief Judge Easterbrook) rejected a constitutional challenge to 18 U.S.C. § 924(c), which requires a minimum five-year sentence for defendants who possess a firearm in furtherance of a drug-trafficking offense.  The challenge was based on the newly recognized individual right to own a firearm, as set forth in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).  The Seventh Circuit held, however, that this individual right does not extend to gun possession for unlawful purposes.