Federal Criminal Law & Process – Page 50 – Marquette University Law School Faculty Blog

Seventh Circuit Week in Review, Part II: Piling on the Mandatory Minimums

Post author:Michael M. O'Hear
Post published:January 18, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Immigration Law Seventh Circuit

In addition to the two cases covered in my prior post, the Seventh Circuit had four new sentencing opinions last week. Only one warrants any extended discussion. And that case, United States v. Easter (Nos. 07-2433, 2435, 3118, 3203, 3540 & 3628), actually presented several different issues raised by multiple defendants.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions. One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense. The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear). McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack. However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes. (For an earlier post on this topic, see here.) Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.

Seventh Circuit Week in Review, Part I: PPGs and Halfway Houses

Post author:Michael M. O'Hear
Post published:January 17, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

The Seventh Circuit had six new opinions in criminal cases this week, all dealing with sentencing issues. Two focused on supervised release questions, which will be the subject of this post; the remaining four with be covered in another post.

First, in United States v. Rhodes (No. 07-3953), a sex offender challenged penile plethysmograph (“PPG”) testing as a condition of supervised release. PPG testing involves attaching a monitor to the male subject’s genitals, presenting him with an array of sexually stimulating images, and then determing the degree of arousal by measuring erectile responses. When used with sex offenders, the hope is that arousal patterns can be studied to determine how great the risk is that an offender will commit new sex crimes. Although experts disagree as the effectiveness of PPG testing, it has become a routine part of adult sex offender treatment programs.

In the Supreme Court, ACCA Is Back-a

Post author:Michael M. O'Hear
Post published:January 13, 2009
Post category:Federal Criminal Law & Process Federal Sentencing U.S. Supreme Court

Recently, the Supreme Court has been taking a lot of interest in the Armed Career Criminal Act, which requires that a minimum fifteen-year prison term be imposed on certain defendants with three or more prior convictions for serious drug offenses or crimes of violence. As I discussed here, the ACCA has proven to be an interpretive nightmare, with courts struggling for more than two decades now to decide exactly which prior convictions count as triggers for the mandatory minimum. With several recent opinions and cert grants, the Supreme Court now seems intent on addressing some of the many circuit splits in the ACCA case law.

Of particular note last year was the Court’s decision in Begay v. United States, in which the Court held that DUI is not a “crime of violence.” Now, following in Begay’s footsteps, the Court held today in Chambers v. United States (No. 06-11206) that failure to report to prison is not a crime of violence.

Chambers does not purport to revise the analytical framework used in Begay, but I am struck by how much closer the Chambers opinion seems to be to Justice Scalia’s concurrence in Begay than to the majority opinion in the earlier case. Has Scalia convinced a few of his colleagues to switch sides?