Seventh Circuit – Page 7 – Marquette University Law School Faculty Blog

Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

Post author:Michael M. O'Hear
Post published:July 27, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation. So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively? Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months. (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.) In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant. However, the judge did not mention the Note 2(B) factors. This, the Seventh Circuit held, was plain error.

Who Is a “Supervisor”? We Know One When We See One

Post author:Michael M. O'Hear
Post published:June 12, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Judge Posner seemed to scoff at this approach:

Speedy Trial Act Does Not Require Articulation of Ends-of-Justice Findings at Time Continuance Granted

Post author:Michael M. O'Hear
Post published:May 21, 2012
Post category:Federal Criminal Law & Process Public Seventh Circuit

In general, the Speedy Trial Act requires federal criminal trials to commence within 70 days of the time a defendant is charged or makes an initial appearance (whichever occurs laters). However, the Act also permits continuances that do not count against the 70 days when a judge finds “that the ends of justice served by [a continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). These ends-of-justice findings must be made on the record, either orally or in writing, but the statute does not specify when they must be made.

In United States v. Zedner, 547 U.S. 489 (2006), the Supreme Court indicated that the “best practice” is for the judge to articulate his or her findings at the same time that a continuance is granted. But are lower courts actually required to adhere to this “best practice”?

Earlier today, in United States v. Wasson (No. 10-2577), the Seventh Circuit affirmed that express ends-of-justice findings may await the defendant’s motion to dismiss on speedy trial grounds.