Seventh Circuit Case of the Week: Sentencing Judges, You’ve Got Some ‘Splaining to Do

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David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

Not so fast, said the Seventh Circuit last week in United States v. Harris (Nos. 08-1192, 08-1543, & 08-1694).  The court, per Judge Williams, vacated Morrow’s sentence because the sentencing judge failed to address the health argument, which was not an argument “clearly without merit”:

[W]e cannot assure ourselves that the district court weighed Morrow’s health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it.  We therefore remand Morrow’s case for resentencing.

In emphasizing the importance of thorough sentence explanations, particularly to demonstrate that the defendant’s arguments for lenience were at least considered, Harris indicates (contrary to an earlier prediction of mine) that the Seventh Circuit’s important decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), is still alive and well.  Sometimes it is nice to be proven wrong. 

Continue ReadingSeventh Circuit Case of the Week: Sentencing Judges, You’ve Got Some ‘Splaining to Do

Seventh Circuit Criminal Case of the Week

seventh-circuit1With only one new opinion in a criminal case, there’s not much to choose from.  Unfortunately, United States v. Sainz-Preciado (No. 07-3706) was a fairly routine case that broke no new legal ground.  In its opinion, the Seventh Circuit (per Judge Tinder) affirmed the defendant’s 262-month sentence for cocaine trafficking over various objections to the way the guidelines sentence was calculated and imposed.

One aspect of the case merits at least brief comment.  The defendant was awarded only a two-point, not the possible three-point, reduction in offense level under the sentencing guidelines for “acceptance of responsibility.”  The third point requires a motion from the government, and the government did not make such a motion for Sainz-Preciado.  Normally, defendants who enter a timely guilty plea, as Sainz-Preciadio did, receive the full acceptance benefit.  However, Sainz-Preciado was penalized by the government for contesting his responsibility at the sentencing hearing for drug deals that he was not even charged with.  This is a nice reminder for defense counsel of the perils of challenging “relevant conduct” at sentencing — and, to invoke one of Justice Scalia’s favorite themes, of the extent to which the guidelines system has replaced the common-law values of adversarial testing of evidence with the bureaucratic values of efficient case-processing.

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It Takes Two to Tango

Historically, courts have declined to impose aiding and abetting liability regarding crimes for which two parties are essential to commission.  As the Model Penal Code puts it, accomplice liability does not extend to conduct that is “inevitably incident” to the main offense; more colloquially, accomplice liability will not apply to crimes for which it “takes two to tango.”  Thus, a buyer of drugs for personal use does not aid or abet the dealer’s distribution; a woman who voluntarily accompanies a man across state lines for purposes of prostitution does not facilitate his violation of the Mann Act; the patron of a speakeasy does not aid and abet the illegal sale of alcohol.  And, as of today, a person who telephones a drug trafficker to order cocaine for personal use does not violate 21 U.S.C. § 843(b).

Section 843(b) offenses are commonly known as “phone counts.”  The statute makes it a felony, punishable by up to four years in prison, to knowingly or intentionally  use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under the Controlled Substances Act.  Some Circuits, including the Seventh, had held that a buyer’s use of the phone in purchasing drugs “facilitates” the seller’s (felony) drug distribution within the meaning of § 843(b).  Today, in Abuelhawa v. United States, the Supreme Court held that Congress, legislating in light of the common-law tradition discussed above, did not intend such a result.  Although the term “facilitate” could be subject to the broad construction urged by the government, the Court found that Congress likely intended the term “facilitate” to be construed similar to “aid and abet.”  The Court noted that Congress generally made simple drug possession a misdemeanor, and transforming misdemeanor possession into a felony simply because a phone was involved would skew “the congressional calibration of respective buyer-seller penalties.”

Phone counts are often used as a means of resolving cases involving greater charges, like conspiracy to distribute.  In those situations, even if the caller is primarily a user, he may intend at least some of the drugs for re-distribution, or he may be middling transactions for others.  But simply using the phone to make a misdemeanor drug purchase is (now) outside the scope of the statute.

Continue ReadingIt Takes Two to Tango
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