With just two new opinions, there was not much criminal action in the Seventh Circuit last week.  One of the two, United States v. Dunson (No. 08-1691), was a very brief per curiam holding that the Indiana crime of fleeing a police officer in a vehicle is a “crime of violence” for purposes of applying § 2K2.1(a)(2) of the Federal Sentencing Guidelines.

The second, and much meatier, opinion was United States v. Bryant (No. 07-3608), in which the court (per Judge Ripple) affirmed the defendant’s conviction for drug trafficking, but nonetheless remanded for resentencing.  A central issue in the case was whether the defendant was dealing crack cocaine, as opposed to some other form of cocaine that would result in a lesser sentence under the Federal Sentencing Guidelnes.  Coincidentally, the court dealt with the same issue the previous week in United States v. Stephenson, which I blogged about here.  In both cases, the court underscored that “crack” is not defined by some particular chemical composition, but by the understanding of drug users and sellers — in a sense, “crack” is what the market calls “crack.” 

Bryant is interesting for the way that it shines a light on the fallibility of crime labs. 

The Seventh Circuit had four new opinions in criminal cases last week.  The court did not break new ground in any of them, but one raises some interesting sentencing issues.  I’ll first discuss that case, United States v. Wise (No. 08-2794), and then briefly summarize the other three, which dealt with the definition of “crack cocaine,” disparity in the sentencing of codefendants, and the constitutionality of a gun possession statute, respectively.

First, the Wise case arose out of terrible tragedy.  Wise left a loaded firearm on a window ledge in his girlfrend’s apartment, where it could be reached by children.  You can already guess where this is headed: a four-year old left unattended in the room for a few minutes picked up the gun, the gun discharged, and a two-year old was killed.  Wise was charged in Illinois state court with reckless endangerment of a child resulting in the child’s death.  Wise, however, was a felon, and so his possession of the firearm was a federal crime, too.  State charges were apparently dropped, as federal prosecutors charged Wise with the gun possession crime.  Wise pled guilty.  The sentencing judge decided to sentence Wise above the recommended sentencing guidelines range and give Wise the maximum, ten years.  Wise challenged his sentence on appeal, and the Seventh Circuit (per Judge Evans) affirmed. 

The Seventh Circuit had four new opinions in criminal cases last week.  Two dealt with sentencing, one with interrogation, and one with a search.  I’ll cover the cases in that order.

In United States v. England (No. 08-2440), the defendant was charged with being a felon in possession of a firearm.  While being held pending trial, England learned that his brother-in-law Robert was cooperating with the police.  In telephone conversations with his father (which were apparently recorded by the police), England expressed feelings of violent rage against the brother-in-law, saying at one point, “[G]o relay a message to Robert [that if he] shows up to court, when I walk outta prison in fifteen years, I’m ‘onna [expletive] murder his [expletive].” 

After being convicted of the original charge, plus three new obstruction-of-justice types of charges, England was sentenced to 262 months in prison.  An earlier appeal and remand for resentencing resulted in a new sentence of 210 months.  Curiously, along the way, the sentencing judge “found” that England would have committed the crime of attempted murder of Robert or one of the other witnesses had he not been in custody before trial.  Indeed, this finding seemed to play a determinative role in the selection of a sentence.  From the standpoint of substantive criminal law, this was a strange move.  As the sentencing judge acknowledged, England took no “substantial step” — in fact, no step of any kind — towards the accomplishment of the murder that he supposedly intended.  There is a sense, then, in which England was punished based on little more than evil thoughts.  And, as any first-year law student will tell you, it is black-letter criminal law that you cannot be punished for thoughts alone.