{"id":2218,"date":"2008-11-27T17:03:07","date_gmt":"2008-11-27T22:03:07","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=2218"},"modified":"2008-12-20T10:04:51","modified_gmt":"2008-12-20T15:04:51","slug":"seventh-circuit-week-in-review-machine-guns-and-cocaine","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2008\/11\/seventh-circuit-week-in-review-machine-guns-and-cocaine\/","title":{"rendered":"Seventh Circuit Week in Review: Machine Guns and Cocaine (And What Thanksgiving Is Complete Without Those?)"},"content":{"rendered":"

\"\"<\/a>The Seventh Circuit had three new opinions in criminal cases in this holiday-shortened work week, with the government winning on all of the major issues in each appeal.\u00a0<\/p>\n

In the first, United States v. Carmel <\/a><\/em>(No. 07-3906), the Seventh Circuit (per Judge Manion) affirmed the defendant’s conviction for possessing an unregistered machine gun in violation of 26 U.S.C. \u00a7 5861.\u00a0 In addition to raising some case-specific issues relating to a search warrant, the defendant also argued that \u00a7 5861 was invalid in light of 18 U.S.C. \u00a7 922(o), which criminalizes possession of machine guns.\u00a0 In essence, Carmel argued that \u00a7 5861, which punishes people for not registering their machine guns, makes no sense when \u00a7 922(o) effectively precludes registration.\u00a0 The Tenth Circuit bought this argument in United States v. Dalton, <\/em>960 F.2d 121 (10th Cir. 1992), but it\u00a0was subsequently\u00a0rejected in seven other circuits.\u00a0 And now the Seventh Circuit makes eight.\u00a0 It’s not clear to me, though, why the government would ever charge a defendant like Carmel\u00a0under \u00a7 5861 when \u00a7 922(o) is also applicable and carries the same maximum penalty — why not render the Dalton <\/em>issue moot by using \u00a7 922(o) exclusively in these cases?<\/p>\n

<\/p>\n

Next, in United States v. Tatum <\/a><\/em>(No. 07-3015), the court (per Judge Williams) affirmed the defendant’s conviction on various drug and weapons charges, rejecting the defendant’s argument that a proper\u00a0foundation had not been laid for the admission into evidence of three baggies of cocaine.\u00a0 Although the police officers who collected the baggies from Tatum had little independent recollection of the circumstances, the court\u00a0observed, “The government does not need to prove a ‘perfect’ chain of custody, and any gaps in the chain ‘go to the weight of the evidence and not its admissibility.'”<\/p>\n

Also\u00a0in Tatum, <\/em>the court flagged (but did not resolve) an interesting question relating to crack cocaine sentencing: whether a defendant applying under 18 U.S.C.\u00a0\u00a7 3582\u00a0for retroactive application of last year’s\u00a0reduction in crack penalties\u00a0can also\u00a0obtain relief under Kimbrough v. United States, <\/em>128 S. Ct. 558 (2007), in which the Supreme Court indicated that judges were not bound by the crack sentencing guideline even in routine cases.<\/p>\n

Finally, in\u00a0United States v. Singleton<\/em> <\/a>(No. 07-3399), the\u00a0Seventh Circuit\u00a0(per Judge Williams) affirmed the district court’s calculation of the defendant’s sentence under the guidelines, but remanded to give the district court an opportunity to resentence outside the guidelines in light of Kimbrough<\/em>.\u00a0 The only\u00a0matter really at issue in the appeal was the district court’s determination of the amount of crack that should be attributed to Singleton for sentencing purposes, much as in the Fox <\/em>case that I blogged about a couple weeks ago<\/a>.\u00a0 But Singleton <\/em>even more starkly illustrates what is wrong with the relevant conduct provisions of the guidelines.<\/p>\n

Singleton pled guilty to selling 6.6 grams of crack to a\u00a0police informant.\u00a0\u00a0At sentencing, though, the district court judge\u00a0found that Singleton was actually responsible for distributing 5,124 grams, resulting in a sentence of more than seventeen years in prison under the guidelines.\u00a0 Because the judge determined that all of Singleton’s sales to\u00a0his friend\u00a0McCrady over the course of six years were part of the same “course of conduct” as the single sale to the police informant, the many thousands of grams sold to McCrady were required to be treated as “relevant conduct” under the guidelines, meaning that Singleton was sentenced as if he had been convicted of selling, not 6.6 grams, but 5,124 grams.\u00a0 And because amount of drugs sold is normally the single most important determinant of sentence length under the guidelines, this was truly a case of the tail (relevant conduct) wagging the dog (what the defendant was actually convicted of doing).\u00a0 And, of course, relevant conduct is determined, not by a jury beyond a reasonable doubt,\u00a0by a judge using the lower preponderance of the evidence standard.\u00a0 Thus, all of this has the appearance of a pretty dramatic circumvention of Singleton’s constitutional rights.\u00a0 If the government really thought it appropriate to punish Singleton for the sales to McCrady, it should have charged those sales precisely as it charged the 6.6 grams.<\/p>\n

To be sure, the earlier references to Kimbrough<\/em> remind us that the sentencing guidelines, including the relevant conduct provisions, are now officially “advisory,” rather than mandatory.\u00a0 But that doesn’t really cure the problem.\u00a0 First, the Supreme\u00a0Court has indicated that the guidelines sentence must still be calculated first in all cases.\u00a0 After a district court judge has invested all the effort necessary to determine relevant conduct — and this may require, as in Singleton, <\/em>a mini-trial of sorts — the judge hardly seems likely to disregard\u00a0that relevant conduct in deciding what sentence to impose.\u00a0 Second, the Supreme Court’s decision in Rita v. United States <\/em>(as well as abundant circuit-level precedent) makes clear that just applying the guidelines sentence will always be the path of least resistance for the busy district court judge.\u00a0 Once the guidelines sentence has been calculated, the judge need go through little or no further analysis or explanation before imposing\u00a0the guidelines\u00a0sentence, and (assuming the guidelines sentence has been correctly calculated) the risks of reversal on appeal are virtually nonexistent.\u00a0 Finally, even after Kimbrough, <\/em>it is far from clear that a district court judge\u00a0has the power to\u00a0disregard relevant conduct on the basis that using it would undermine the defendant’s constitutional rights.\u00a0 In short, the “wag the dog” problem exemplified by Singleton <\/em>remains a significant concern even under the so-called advisory guidelines.<\/p>\n

How can the problem be addressed?\u00a0 There are many possibilities.\u00a0 First, Congress could convert the guidelines back to mandatory and implement a requirement for jury fact-finding beyond a reasonable doubt for relevant conduct.\u00a0 Second, the Sentencing Commission could amend the guidelines so that relevant conduct receives less weight than conduct that was actually charged and proven beyond a reasonable doubt at trial (or as to which the defend formally pled guilty).\u00a0 Third, the Supreme Court (or, pending a Supreme Court decision, the circuit courts) could make clear that a sentencing judge’s disagreement with the existing relevant conduct guideline and\/or a sentencing judge’s desire to ensure that a defendant’s constitutional rights are not circumvented constitute permissible grounds for a below-guidelines sentence.\u00a0 Finally, the courts and\/or the Commission could narrow the scope of what counts as relevant conduct.\u00a0 For instance, in Singleton<\/em>, the Seventh Circuit held that the sales to McCrady were relevant to the sale to the informant because all of the sales involved the same seller, the same drug, and the same location.\u00a0 But, in order for the sales to count as a single course of conduct, even more similarity might have been required, e.g., same supplier, same means of\u00a0taking orders, same quantities (the individual sales to McCrady were one to two ounces each,\u00a0which is much greater than the 6.6 grams sold to the informant), and\/or temporal overlap (the final sale to McCrady was made at least two months before the sale to the informant).\u00a0<\/p>\n

The Fox<\/em> case referenced above\u00a0provided a nice example of the Seventh Circuit employing a narrow interpretation of relevant conduct and requiring some real analytical rigor from the sentencing judge before increasing the amount of drugs attributable to a defendant.\u00a0 Singleton <\/em>seems rather less demanding (albeit with respect to a somewhat different dimension of the relevant conduct problem).\u00a0 To be sure, Singleton’s <\/em>approach seems perfectly consistent with Seventh Circuit precedent, illustrating the unhappy fact that\u00a0any effort to fix the “wag the dog” problem at the circuit level will run into a heavy weight of\u00a0existing case law.\u00a0 As a result, it may be\u00a0too much to expect the circuit courts to address the problem without leadership from Congress, the Commission, or the Supreme Court.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit had three new opinions in criminal cases in this holiday-shortened work week, with the government winning on all of the major issues in each appeal.\u00a0 In the first, United States v. Carmel (No. 07-3906), the Seventh Circuit (per Judge Manion) affirmed the defendant’s conviction for possessing an unregistered machine gun in violation […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,74,23],"tags":[],"class_list":["post-2218","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2218","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=2218"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/2218\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=2218"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=2218"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=2218"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}