Federal Law & Legal System – Page 145 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Crediting the Lost Opportunity to Serve a Concurrent Sentence

Post author:Michael M. O'Hear
Post published:August 30, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

Since separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime. But what if federal prosecution is delayed, and the state sentence has already been served by the time sentencing occurs in federal court? The federal sentence cannot be made concurrent in those circumstances. Is it permissible then for the district judge to reduce the federal sentence length in light of the missed opportunity for a concurrent sentence?

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer. Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence.

Ashcroft v. Iqbal and the Pleading Standard

Post author:Jay Rabideaux
Post published:August 27, 2009
Post category:Federal Civil Litigation U.S. Supreme Court Uncategorized

Law professors teaching Civil Procedure this fall may have reason to revise their lecture notes covering the pleading standard in federal courts for the first time in a long time. This pleading standard, as articulated in the Federal Rules of Civil Procedure (FRCP) Rule 8(a), has presented a very low hurdle for plaintiffs since the Supreme Court addressed the issue in Conley v. Gibson in 1957. That is, perhaps, until Ashcroft v. Iqbal , a Supreme Court detainee case decided this spring that may end up significantly heightening the pleading standard for federal civil courts.

Depending on where you look, you can find members of the legal community making different predictions of where the courts will land on Iqbal. Some are dismissing the significance of the case, and others are declaring it a major obstacle for plaintiffs and a coup for corporate defense.

Seventh Circuit Criminal Case of the Week: Of Lifelines and Waiver

Post author:Michael M. O'Hear
Post published:August 22, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Judges & Judicial Process Seventh Circuit

seventh circuit

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack. An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act. Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana. Looks like a slam-dunk issue on appeal, right?