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.

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Environmental Sentencing: Its Bark Is Worse Than Its Bite — Should We Care?

I have a new paper on SSRN about the sentencing of environmental offenders.  The title is “Bark and Bite: The Environmental Sentencing Guidelines after Booker.”  Using date collected by the United States Sentencing Commission, I show that judges sentence below the range recommended by the federal sentencing guidelines in an unusually high percentage of environmental cases, approaching sixty percent in some years.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime.  Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions.  Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract: 

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