{"id":3768,"date":"2009-02-15T23:53:41","date_gmt":"2009-02-16T04:53:41","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=3768"},"modified":"2009-02-15T23:53:41","modified_gmt":"2009-02-16T04:53:41","slug":"seventh-circuit-week-in-review-sentencing-thought-crimes","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/02\/seventh-circuit-week-in-review-sentencing-thought-crimes\/","title":{"rendered":"Seventh Circuit Week in Review: Sentencing Thought Crimes"},"content":{"rendered":"

\"\"<\/a>The Seventh Circuit had four new opinions in criminal cases last week.\u00a0 Two dealt with sentencing, one with interrogation, and one with a search.\u00a0 I’ll cover the cases in that order.<\/p>\n

In United States v. England <\/a><\/em>(No. 08-2440), the defendant was charged with being a felon in possession of a firearm.\u00a0 While being held pending trial, England learned that his brother-in-law Robert was cooperating with the police.\u00a0\u00a0In telephone conversations with his father (which were apparently recorded by the police), England expressed\u00a0feelings of violent\u00a0rage against the brother-in-law, saying at one point, “[G]o relay a message to Robert [that if he] shows up\u00a0to court, when I walk outta prison in fifteen years, I’m ‘onna [expletive] murder his [expletive].”\u00a0<\/p>\n

After being convicted of\u00a0the original charge,\u00a0plus three new obstruction-of-justice types of charges, England was sentenced to 262 months in prison.\u00a0 An earlier appeal and remand for resentencing resulted in a new sentence of 210 months.\u00a0 Curiously, along the way, the sentencing judge “found” that England would have committed the crime of attempted\u00a0murder of Robert or one of the other witnesses\u00a0had he not been in custody before trial.\u00a0 Indeed, this finding seemed to play a determinative role in the selection of a sentence.\u00a0 From the standpoint of substantive criminal law, this was a strange move.\u00a0 As the sentencing judge acknowledged, England took no “substantial step” — in fact, no step of any kind\u00a0— towards the accomplishment of the murder that he supposedly intended.\u00a0 There is a sense, then, in which England was\u00a0punished based on\u00a0little more than evil thoughts.\u00a0 And, as any first-year law student will tell you, it is black-letter criminal law that you cannot be punished for thoughts alone.<\/p>\n

After\u00a0England appealed his new sentence, the Seventh Circuit\u00a0(per Judge Flaum) again vacated and remanded for resentencing.\u00a0 The court emphasized the need for sentencing facts to be found by at least a preponderance of the evidence.\u00a0 Here, the evidence did not adequately support the finding that England would have committed attempted murder had he been released on bond.\u00a0 Robert testified that he did not feel threatened by England’s statements, and he and other family members indicated they believed that England was just “blowing off steam.”<\/p>\n

It is good to see district court fact-finding subjected to rigorous scrutiny at the appellate level; it\u00a0sometimes seems that appellate courts use the deferential standard of review for fact-finding as an excuse to avoid real engagement with the evidentiary record below.\u00a0 But, apart from the quality of the lower court’s fact-finding,\u00a0I wish the\u00a0Seventh Circuit\u00a0had also commented on the deeper question of why and how “findings” of hypothetical crimes that the defendant might have committed are relevant to the determination of a sentence.\u00a0 Now, of course, it is perfectly appropriate to increase sentence length under incapacitation theory based on the expectation that a defendant will commit additional crimes after <\/em>sentencing.\u00a0 And that may have been what the sentencing judge was doing in England<\/em>.\u00a0 But the record (at least as quoted in the Seventh Circuit’s opinion) suggests\u00a0a different interpretation: England was not being\u00a0prevented prospectively from committing additional crimes after sentencing, but was being punished retrospectively for a crime he would have liked to (but did not) commit before <\/em>sentencing.\u00a0 Again, this has a flavor of\u00a0punishment for thoughts alone.\u00a0 This would not necessarily be beyond justification,\u00a0but it might have been helpful for the Seventh Circuit\u00a0at least to flag\u00a0such punishment\u00a0as something that\u00a0requires more careful explanation than seems to have been provided by the lower court in England<\/em>.\u00a0\u00a0<\/p>\n

The remaining cases from last week warrant less discussion.<\/p>\n

In United States v. Scott <\/em><\/a>(No. 08-2579), the defendant was convicted of crack cocaine trafficking.\u00a0 Since Kimbrough v. United States, <\/em>128 S. Ct. 558 (2007), district court judges have been permitted<\/em> to\u00a0sentence below the guidelines range\u00a0in crack cases in light of the unjustified disparity in the guidelines’ treatment of crack and powder cocaine.\u00a0 In Scott’s case, though, the sentencing judge declined to close the crack-powder disparity.\u00a0 On appeal, the Seventh Circuit\u00a0(per Judge Ripple) affirmed that sentencing judges are not required <\/em>to use the discretion they have under Kimbrough.<\/em>\u00a0 Nor are they necessarily required to provide a specific response to a defendant’s policy argument that there is no good reason to treat crack and powder differently.<\/p>\n

In United States v. Montgomery <\/em><\/a>(No. 08-1690),\u00a0the defendant was convicted of being a felon in possession of a firearm based, in part, on a statement he gave to a federal agent after invoking his right to remain silent.\u00a0\u00a0On appeal, Montgomery argued that the statement should have been suppressed,\u00a0raising two main arguments.\u00a0 First, he\u00a0argued that the federal agent made a false\u00a0promise that he would be treated leniently if he gave a statement.\u00a0\u00a0There was no dispute that the agent provided erroneous information to Montgomery: he\u00a0indicated that Montgomery would get less than ten years, when, in fact, Montgomery’s criminal history was sufficient to trigger a fifteen-year mandatory minimum.\u00a0 But this\u00a0“promise” (which may have\u00a0reflected an innocent mistake on the part of the agent) was not tied to\u00a0Montgomery confessing; thus, the Seventh Circuit\u00a0(per Judge Flaum) decided that it did not require suppression of\u00a0Montgomery’s statement.<\/p>\n

Second, Montgomery argued that the agent should not have questioned him after he invoked his right to remain silent.\u00a0 The court ruled, however, that the agent appropriately initiated a conversation with Montgomery on topics other than the charge as to which Montgomery had invoked his right; it was Montgomery himself who voluntarily steered the conversation to the latter topic.\u00a0 Under such circumstances, suppression of the statement was not required.<\/p>\n

Finally, in United States v. Gonzalez <\/em><\/a>(No. 08-1238), the defendant was arrested\u00a0after participating in a drug deal near his house.\u00a0 Police then entered\u00a0Gonzalez’s home with the consent of his sister and mother.\u00a0\u00a0From outside\u00a0the door, police observed more drugs in Gonzalez’s bedroom.\u00a0 They entered the\u00a0bedroom to secure the contraband that was in plain sight.\u00a0 While there, one officer looked inside a closed shoebox and found more drugs.\u00a0 On appeal after his conviction, Gonzalez argued that the latter evidence should have been suppressed as obtained in violation of his Fourth Amendment rights.\u00a0 The Seventh Circuit\u00a0(per Judge Bauer) affirmed on the basis of the “independent source doctrine.”\u00a0 After the search of Gonzalez’s room, police obtained a search warrant without mentioning the contents of the shoebox.\u00a0 The lower court found that police would have sought and obtained the warrant even if the shoebox had not been opened.\u00a0 Because the finding was not clearly erroneous, the Seventh Circuit held that the requirements of the independent source doctrine were satisfied.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit had four new opinions in criminal cases last week.\u00a0 Two dealt with sentencing, one with interrogation, and one with a search.\u00a0 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.\u00a0 While being held pending […]<\/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-3768","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\/3768","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=3768"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/3768\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=3768"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=3768"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=3768"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}