Federal Sentencing – Page 19 – Marquette University Law School Faculty Blog

Seventh Circuit: Earlier Sentence Served in Juvenile Detention Facility Can Make Defendant a Career Offender

Post author:Michael M. O'Hear
Post published:January 17, 2010
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh circuit After pleading guilty in federal court to various drug-trafficking offenses, Isaiah Gregory received an eye-popping sentence of 327 months in prison — more than 27 years behind bars. Driving this extraordinary sentence was the district court’s finding that Gregory was a “career offender” under the federal sentencing guidelines. It was the career offender guideline that raised Gregory’s guidelines range from either 120-135 months (as he calculated it) or 121-151 months (as the government calculated it) to 262-327 months. Thus, the career-offender finding likely added more than fourteen years to Gregory’s sentence.

Although the term “career offender” may conjure up images of a hardened criminal with a rap sheet down to your knees, the guidelines require only two prior felony convictions of either a crime of violence or a controlled substance offense in order to trigger the career-offender sentence enhancement.

Even at that, Gregory hardly seems the sort of defendant that the Sentencing Commission must have had in mind when it drafted the career-offender guideline. In particular, one of his two qualifying convictions was a $30 robbery he committed when he was only fifteen (he is now in his mid-20’s) — a robbery for which he was sent, not to prison, but to a juvenile detention facility. Although it is not clear that the conviction should have counted under the plain terms of the career-offender guideline, the Seventh Circuit nonetheless affirmed his sentence last week in United States v. Gregory (No. 09-2735).

Incarceration Nation

Post author:David R. Papke
Post published:December 21, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing

Despite the increasingly audible calls for changes in policy, we should not lose sight of the extent and nature of imprisonment in the United States. As of 1975, only .01% of the population was imprisoned, but the percentage has grown every year since then and now stands at almost .05%. We as a nation have the dubious distinction of reporting the highest per capita imprisonment figure in the world. What’s more, American prisons are no longer geared to rehabilitating inmates. Instead of educating and training inmates, prisons for the most part simply warehouse them.

These developments do not derive from increases in crime or from the widespread commission of more serious crimes. Instead, the increase in the number of inmates and the use of warehouse-style incarceration are attributable to such policies as quicker revocation of probation and parole, mandatory sentences for certain crimes, three strikes legislation, and truth-in- sentencing laws. Often, these policies come into play for drug-related offenses and are part of the larger “war on drugs.”

Noam Chomsky contends, “In the United States the drug war is basically a technique for containing populations internal to the country and doesn’t have much to do with drugs.” Chomsky has in mind the urban underclass, which is disproportionately but not exclusively made up of members of minority groups. Middle and upper class Americans have come to see the underclass as dangerous and almost inherently criminal and are comfortable with warehousing larger and larger numbers in order to maintain social control. Chomsky suggests the contemporary imprisoning of large numbers of poor men and women is an American variety of “social cleansing.”

As harsh as Chomsky’s comments might seem, law professor Jonathan Simon might take the critique one step further. In his book Poor Discipline, Simon argues that mainstream Americans perceive inmates as a type of “toxic waste” and take those who run our jails, prisons, and penitentiaries to have the nasty task of “waste management.” How troubling is to see our nation traveling down this fundamentally dehumanizing path.

Seventh Circuit Demands “Intellectual Discipline” at Sentencing

Post author:Michael M. O'Hear
Post published:December 16, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

It’s almost like Judge Easterbrook read my article. I have a forthcoming piece in the Marquette Law Review arguing that appellate courts ought generally to demand more rigor of trial judges in explaining their sentences and specifically to require greater attention to objective benchmarks. Not surprisingly, I was quite pleased to read the Seventh Circuit’s opinion earlier this week in United States v. Kirkpatrick (No. 09-2382) (Easterbrook, J.), in which the court called for “intellectual discipline” at sentencing and vacated a sentence because the district judge failed to use the sentencing guidelines as an initial benchmark.

Here’s what happened. Following his arrest for unlawful gun possession, Kirkpatrick confessed to four murders and then told his cellmate that he had arranged a contract hit on a federal agent. After more than 200 hundred hours of investigation, law enforcement officials determined that all of these claims were false. (Why Kirkpatrick would confess to four murders he did not actually commit is a mystery to me.) With a conviction only for the gun-possession crime, Kirkpatrick’s guidelines range was calculated to be 37-46 months. The district judge, however, felt he deserved more because of the false statements and the wasted law enforcement effort they caused. So the sentence actually imposed was 108 months — more than twice the guidelines maximum.