Seventh Circuit – Page 34 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week

Post author:Michael M. O'Hear
Post published:May 31, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh-circuit1 With only one new opinion in a criminal case, there’s not much to choose from. Unfortunately, United States v. Sainz-Preciado (No. 07-3706) was a fairly routine case that broke no new legal ground. In its opinion, the Seventh Circuit (per Judge Tinder) affirmed the defendant’s 262-month sentence for cocaine trafficking over various objections to the way the guidelines sentence was calculated and imposed.

One aspect of the case merits at least brief comment. The defendant was awarded only a two-point, not the possible three-point, reduction in offense level under the sentencing guidelines for “acceptance of responsibility.” The third point requires a motion from the government, and the government did not make such a motion for Sainz-Preciado. Normally, defendants who enter a timely guilty plea, as Sainz-Preciadio did, receive the full acceptance benefit. However, Sainz-Preciado was penalized by the government for contesting his responsibility at the sentencing hearing for drug deals that he was not even charged with. This is a nice reminder for defense counsel of the perils of challenging “relevant conduct” at sentencing — and, to invoke one of Justice Scalia’s favorite themes, of the extent to which the guidelines system has replaced the common-law values of adversarial testing of evidence with the bureaucratic values of efficient case-processing.

Seventh Circuit Criminal Case of the Week

Post author:Michael M. O'Hear
Post published:May 22, 2009
Post category:Seventh Circuit

By the default, the title “Case of the Week” must go to the only new opinion of the week: United States v. Gooden (No. 08-3240). And even Gooden only barely qualifies, as the opinion is merely a slightly amended version of an earlier opinion in the case (noted in my post here). The only difference I can see in the amended opinion is a clarification that the notice requirements of Rule 32(h) do not apply to post-Booker variances per the Supreme Court’s recent decision in Irizarry v. United States, 128 S. Ct. 2198 (2008).

Seventh Circuit Criminal Case of the Week: Watch the “R” Word, Prosecutors!

Post author:Michael M. O'Hear
Post published:May 18, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

Two months ago, I posted here about the Seventh Circuit’s sharp rebuke of a prosecutor in United States v. Farinella, in which the defendant was charged with selling mislabeled bottles of salad dressing. The court’s concerns focused, in part, on the prosecutor’s repeated suggestions to the jury that the salad dressing was spoiled, despite the absence of any evidence to that effect. The court, per Judge Posner, rightly took the prosecutor to task for attempting to inflame the jury’s emotions through evocative, but misleading, characterizations of the evidence. We can and should expect prosecutors to act with integrity and restraint in carrying on their critically important public functions, rather than playing the adversarial system for all it’s worth. In my experience, the vast majority of prosecutors appreciate — apologies to Vince Lombardi — that winning is not the only thing. But, when prosecutors do occasionally cross the line, as in Farinella, I am happy to see the courts call them out.

I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury.