Seventh Circuit Week in Review, Part II: Piling on the Mandatory Minimums

In addition to the two cases covered in my prior post, the Seventh Circuit had four new sentencing opinions last week.  Only one warrants any extended discussion.  And that case, United States v. Easter (Nos. 07-2433, 2435, 3118, 3203, 3540 & 3628), actually presented several different issues raised by multiple defendants.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions.  One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense.  The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear).  McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack.  However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes.  (For an earlier post on this topic, see here.)  Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.

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Seventh Circuit Week in Review, Part I: PPGs and Halfway Houses

The Seventh Circuit had six new opinions in criminal cases this week, all dealing with sentencing issues.  Two focused on supervised release questions, which will be the subject of this post; the remaining four with be covered in another post.

First, in United States v. Rhodes (No. 07-3953), a sex offender challenged penile plethysmograph (“PPG”) testing as a condition of supervised release.  PPG testing involves attaching a monitor to the male subject’s genitals, presenting him with an array of sexually stimulating images, and then determing the degree of arousal by measuring erectile responses.  When used with sex offenders, the hope is that arousal patterns can be studied to determine how great the risk is that an offender will commit new sex crimes.  Although experts disagree as the effectiveness of PPG testing, it has become a routine part of adult sex offender treatment programs. 

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Seventh Circuit Week in Review: “Abusive Sexual Conduct Involving a Minor” and a Driver’s License Revocation

The Seventh Circuit had two new opinions in criminal cases this past week.  In the first, United States v. Osborne (No. 08-1176), the court considered the scope of 18 U.S.C. §2252(b)(1), which imposes a fifteen-year mandatory minimum sentence on certain child pornography defendants who have a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.”  Osborne, convicted of a qualifying pornography offense in federal court, had a prior conviction in Indiana state court for “fondling or touching” a person age fourteen or fifteen “with intent to arouse or . . . satisfy sexual desires.”  Thus, Osborne plainly had a prior conviction for sexual conduct involving a minor, but was it “abusive”?  The district court thought so, but the Seventh Circuit (per Chief Judge Easterbrook) rejected a broad interpretation of “abusive” that would result in all sexual conduct with a minor qualifying — such an approach would essentially write the word “abusive” out of the statute. 

Section 2252 does not define “abusive,” but other federal statutes define “abuse” for other purposes.  The court reasoned that such other statutes should be consulted to determine whether a prior state conviction counts as “abusive sexual conduct.” 

Continue ReadingSeventh Circuit Week in Review: “Abusive Sexual Conduct Involving a Minor” and a Driver’s License Revocation