Michael M. O’Hear – Page 131 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Crediting the Lost Opportunity to Serve a Concurrent Sentence

Post author:Michael M. O'Hear
Post published:August 30, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

Since separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime. But what if federal prosecution is delayed, and the state sentence has already been served by the time sentencing occurs in federal court? The federal sentence cannot be made concurrent in those circumstances. Is it permissible then for the district judge to reduce the federal sentence length in light of the missed opportunity for a concurrent sentence?

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer. Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence.

Blood Testing of Athletes

Post author:Michael M. O'Hear
Post published:August 23, 2009
Post category:Legal Scholarship Sports & Law

blood sample Urine testing has become a familiar part of the sports landscape, but less so blood testing. However, the development of a blood test for human growth hormone has the potential to make blood testing of athletes more common. Matt Mitten considers legal aspects of such testing in a new paper on SSRN entitled “Legal Issues Arising Out of Blood Testing for Human Growth Hormone.” Here is the abstract:

To date, no U.S. or foreign court or arbitral tribunal has directly considered whether mandatory blood testing of athletes for banned performance-enhancing substances, including synthetic human growth hormone (rhGH), violates any internationally or nationally recognized individual rights to privacy or bodily integrity. To determine how this issue is likely to be resolved in litigation or arbitration, this article reviews the developing U.S. law and private international law established by arbitration awards regarding the legality of drug testing at the various levels of athletic competition as well as the compelled taking and testing of a person’s blood outside the context of athletics.

Seventh Circuit Criminal Case of the Week: Of Lifelines and Waiver

Post author:Michael M. O'Hear
Post published:August 22, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Judges & Judicial Process Seventh Circuit

seventh circuit

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack. An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act. Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana. Looks like a slam-dunk issue on appeal, right?