Federal Sentencing – Page 20 – Marquette University Law School Faculty Blog

Federalism and Criminal Law

Post author:Michael M. O'Hear
Post published:November 27, 2009
Post category:Criminal Law & Process Federal Sentencing Federalism U.S. Supreme Court

This is the fourth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

Habeas corpus presents the classic federalism problem in criminal law: how can federal courts overturn flawed state-court judgments while maintaining due respect for state sovereignty and the autonomy of state criminal-justice systems? But federalism issues can also appear in criminal cases that originate in federal court. In its new term, the Supreme Court has at least two such cases.

First, in United States v. Johnson, the Court will consider whether a battery conviction in Florida state court counts as a violent crime for purposes of the Armed Career Criminal Act, a federal sentencing statute. (I have posted several times about ACCA in the past year, most recently here.) Although “battery” normally evokes images of serious violent crime, Florida law defines battery so that it includes any nonconsensual touching, regardless of risk of injury. For that reason, the Florida Supreme Court has already ruled that battery is not a violent crime for state-law purposes. Thus, in Johnson, the United States Supreme Court is confronted with a question of whether it should defer to state-court characterizations of state crimes for purposes of implementing a federal statute.

Second, in United States v. Weyrauch, the Court must decide whether a state official can be convicted of honest-services fraud based on a conflict of interest that did not violate state law. (This is one of three new cases in which the Court will consider various dimensions of the federal crime of honest-services fraud.)

Seventh Circuit Criminal Case of the Week: Yes, Eco-Terrorists Are Real Terrorists

Post author:Michael M. O'Hear
Post published:November 15, 2009
Post category:Criminal Law & Process Environmental Law Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh-circuit51 On the night of July 20, 2000, Katherine Christianson, Bryan Rivera, and two companions damaged or destroyed more than 500 trees at a United States Forest Service facility. Was it a prank? A dare? A harvest for the thneed industry? No, Christianson and Rivera were members of the eco-terrorist group Earth Liberation Front, and their target was the Forest Service’s genetic-engineering experiments on trees in Rhinelander, Wisconsin. ELF issued a press release the next day claiming responsibility for the attack and asserting that “the Forest Service, like industry, are [sic] capitalists driven by insane desire to make money and control life.”

Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively. On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines. He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.” The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.).

Federal Sentencing and the Lack of Theory in Criminal Justice

Post author:Chris Donovan
Post published:October 21, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

Defendants in federal criminal cases often cooperate with the government to get their sentence reduced, especially when facing an extremely high statutory mandatory minimum (it is not uncommon for federal defendants to face mandatory minimums of ten years or higher). In these cases, to get below the mandatory minimum, the government must file a motion to credit the defendant for his or her assistance. If this is done before sentencing, it is filed pursuant to 18 U.S.C. § 3553(e); if after sentencing, it is filed pursuant to Fed. R. Crim. Pro. 35(b). A recent emerging issue in federal sentencing law has been what factors a judge may consider when reducing a sentence under either of these provisions.

Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution. When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.

The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35. See United States v. Johnson, No. 08-3541 (7^th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7^th Cir. October 20, 2009).