Federal Law & Legal System – Page 87 – Marquette University Law School Faculty Blog

Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

Post author:Michael M. O'Hear
Post published:August 20, 2011
Post category:Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

As I described here and here, the Seventh Circuit has an interesting line of cases that attempt to establish some minimal standards for the way that district judges explain their sentences. Add to that line the court’s decision last week in United States v. Robertson (No. 10-3543). I think that Robertson is the court’s first decision to apply the explanation requirement to a resentencing that occurred after revocation of a defendant’s supervised release.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing. (4) The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].” (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months. Here is the “explanation” for the sentence that the Seventh Circuit found inadequate:

Two Circuits Approve Use of Uncounseled Convictions Against Native Americans

Post author:Michael M. O'Hear
Post published:August 18, 2011
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Public

In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel. Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts. If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

Farewell, Judge Terence T. Evans

Post author:Michael M. O'Hear
Post published:August 17, 2011
Post category:Marquette Law School Public Seventh Circuit

One of Marquette’s most distinguished judicial alumni passed away last week. Judge Terence T. Evans ’67 had served since 1995 on the Seventh Circuit Court of Appeals. Before that, he served as a trial judge in federal district court and Milwaukee County Circuit Court.

Judge Evans was profiled here in the Marquette Lawyer, along with his Seventh Circuit colleagues Judge John L. Coffey ’48 and Judge Diane S. Sykes ’84. Judge Evans’ Journal Sentinel obituary is here. A webcast of an “On the Issues” conversation he had with Mike Gousha and Judge Sykes is here. (The picture above comes from that exchange.)

I never had the pleasure of meeting Judge Evans in person, but I’ve read many of his opinions. They do have a distinct style and sensibility — once you’ve read a few, you are not likely to mistake an Evans opinion for that of any of his colleagues. The opinions reflect a sharp wit, an eye for the telling factual detail, and a commonsensical approach to judging. I doubt there are many judges on the federal bench whose opinions would be more accessible and engaging for the lay reader.

The Wisconsin Public Defender’s On Point website has collected some wonderful personal reminiscences of Judge Evans here. Among the many notable tributes is one from his former clerk Daniel J. O’Brien ’78, who observed:

No one – NO ONE – enjoyed life more than “The Judge.” Luckily, for those of us privileged to spend time with him, that joie de vivre (borrowed from Judge Easterbrook’s marvelous tribute) was contagious. . . .

The Judge’s skill as a jurist was surpassed only by his warmth as a person. The word “mentor” is far down the list of adjectives describing his impact on my life [Others that come to mind: Marquette recruiting analyst, legal writing tutor (“To be a good legal writer,” he’d often say, “write like a journalist, not a lawyer”), comedian, Brewer fan, role model, expert on “greasy spoon” diners, and friend].

Visitation is today from 4:00 to 8:00 at Feerick Funeral Home, 2015 E. Capitol Dr. Additional parking is across the street at Atwater School and at St. Roberts Catholic Church, which is about one block to the west.