The Seventh Circuit continues to struggle with the question of what it means for the federal sentencing guidelines to be “advisory.”  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory guidelines system violated the Sixth Amendment.  The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory.  Then, in Kimbrough v. United States, 128 S. Ct. 558 (2007), the Court confirmed what even the government had recognized and conceded: “advisory” means that a district court judge may impose a sentence outside the recommended guidelines range on the basis of a policy disagreement with the guidelines.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

When a person is caught in a lie, we normally assume that he is covering something up.  But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing?  Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant.  The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking.  And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.”  (For an earlier post on the pitfalls of relevant conduct, see here.)  In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest.  Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced.  If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right?  The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly. 

The Seventh Circuit had four new opinions in criminal cases this week.  The cases addressed the mens rea requirements for corporate criminal liability, procedural aspects of suppression hearings, child pornography sentencing, and conditional guilty pleas.  Taking the cases in that order:

In United States v. L.E. Myers Co. (No. 07-2464), the defendant corporation was convicted of criminal OSHA violations in connection with the electrocution death of one its employees.  The Seventh Circuit (per Judge Sykes) reversed and remanded for a new trial in light of erroneous jury instructions.  The errors related to mens rea issues.  Myers was convicted under a statute that bases liability on the knowing creation of a hazardous condition in knowing violation of an OSHA requirement. 

The problem is that a corporation, as a legal construct, cannot really know anything; the only way a corporation knows something is to the extent the law is willing to impute the knowledge of particular employees to the corporation.  Seventh Circuit precedent indicated that “corporations ‘know’ what their employees who are responsible for an aspect of the business know.”  More specifically, the corporation was said to know what an employee knows if the employee has a duty to report that knowledge to someone higher up in the corporation.