Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

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:

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Farewell, Judge Terence T. Evans

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.

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Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

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