{"id":4437,"date":"2009-03-29T21:27:17","date_gmt":"2009-03-30T02:27:17","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4437"},"modified":"2009-03-29T21:37:11","modified_gmt":"2009-03-30T02:37:11","slug":"seventh-circuit-week-in-review-crook-impersonates-cop-cop-impersonates-teenager","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/03\/seventh-circuit-week-in-review-crook-impersonates-cop-cop-impersonates-teenager\/","title":{"rendered":"Seventh Circuit Week in Review: Crook Impersonates Cop, Cop Impersonates Teenager"},"content":{"rendered":"

\"\"<\/a>The Seventh Circuit had only two new opinions in criminal cases last week, with both focusing on sentencing issues.\u00a0 The first, United States v. Abbas<\/a><\/em>, clarified the harmless\u00a0error doctrine\u00a0as it relates to\u00a0mistaken sentencing calculations.\u00a0 The second, United States v. Nagel<\/a>,<\/em>\u00a0considered the constitutionality of a ten-year mandatory minimum for enticement of a minor.\u00a0 By some coincidence, both cases involved impersonation.<\/p>\n

In Abbas <\/em>(No. 07-3866), the defendant was convicted of several crimes, including impersonating an FBI agent.\u00a0\u00a0Falsely claiming the power to make various immigration and criminal problems go away, Abbas tricked\u00a0several desperate victims into paying him for assistance.\u00a0\u00a0A jury found him guilty of a number of charged offenses, but acquitted him of\u00a0extortion under color of official right\u00a0in violation of the Hobbs Act.\u00a0 Curiously, though, the district court judge sentenced Abbas\u00a0based on the\u00a0federal sentencing guideline for extortion under color of official right.\u00a0 (As I discussed with my Sentencing students just last week, the guidelines permit\u00a0defendants to be punished for crimes of which they have been acquitted.\u00a0 Sound strange?\u00a0\u00a0You would not be alone in so thinking!)<\/p>\n

On appeal, Abbas argued that “extortion under color of official right” only applies when someone who is actually a public official<\/em> abuses his\u00a0authority, and does not cover private citizens who are merely pretending to be public officials.\u00a0\u00a0In effect, Abbas argued that he was really only guilty of fraud, not the more serious offense of extortion.\u00a0 And, had he been sentenced for fraud, his guidelines range would have been only 15-21 months, instead of the actual 24-30 months.<\/p>\n

The Seventh Circuit\u00a0(per Judge Tinder) agreed . . . but still declined to order a resentencing.\u00a0 Abbas won the battle, but not the war.<\/p>\n

Specifically, Abbas lost on the harmless error doctrine, which saves\u00a0trial courts the trouble of conducting a new proceeding when there\u00a0was merely\u00a0a technical error in an earlier proceeding that did not affect the outcome.\u00a0<\/p>\n

Taking into account the harmless error doctrine, the\u00a0Seventh Circuit\u00a0indicated that a two-step analysis should be used when a guidelines range is incorrectly calculated.\u00a0 First, to “prove harmless error, the government must be able to show that the Guidelines error did not affect the district court’s selection of the sentence imposed.”\u00a0 Second, the court of appeals must determine whether the actual sentence was substantively reasonable in light of the properly calculated guidelines range; in other words, “was the district judge’s explanation sufficient to justify an upward departure from what is the appropriate guideline range”?<\/p>\n

Although the Seventh Circuit’s application of the two-part test in Abbas <\/em>seemed reasonable enough, one aspect of the opinion gives me pause: the court’s reliance on the sentencing judge’s statement that she would have imposed the same sentence regardless of whether she properly calculated the guidelines range.\u00a0 Whether intentionally or not, the opinion sends a message to district court judges who wish to avoid\u00a0reversal that they should always make such a statement (“I would have given the same sentence whatever the guidelines say”)\u00a0whenever they make a contested calculation under the guidelines.\u00a0 I hope that the Seventh Circuit will not start to accept such statements uncritically.\u00a0 Even if the sentencing judge makes such a statement in good faith,\u00a0I would generally be pretty skeptical that the judge has made an accurate self-assessment.\u00a0 Just because an after-the-fact rationalization is genuinely believed does not make it true.\u00a0 As I discuss in this forthcoming article<\/a>, there are a number of psychological reasons to suspect that guidelines calculations, once made, are sticky — at an unconscious level, they condition the judge’s subsequent analysis of other sentencing factors.\u00a0 Taking these cognitive mechanisms into account, I should think it an unusual case indeed in which the government could satisfy its harmless error burden when there has been a guidelines miscalculation.<\/p>\n

In Nagel <\/em>(No. 08-2535), the defendant exchanged sexually explicit communications via computer chat and telephone with a fourteen-year-old\u00a0girl.\u00a0 When he\u00a0traveled to meet her, however, he discovered that\u00a0“Maria” was really a Milwaukee cop.\u00a0 Nagel then pled guilty to attempting to entice a minor to engage in a criminal sexual act in violation of 18 U.S.C. \u00a7 2422(b).\u00a0 Since its amendment in 2006 through the so-called Adam Walsh Act, \u00a7 2422(b) has included a mandatory minimum prison term of ten years, and Nagel was sentenced accordingly.\u00a0 On appeal, he challenged the constitutionality of the mandatory minimum on Equal Protection and Cruel and Unusual Punishment Clause grounds.\u00a0 Both claims were rejected by the Seventh Circuit\u00a0(per Judge Kapala, sitting by designation).<\/p>\n

The Equal Protection claim was clever — Nagel argued that since some drug offenders get the benefit of a “safety-valve” statute that releases them from the drug mandatory minimums, sex offenders must be given similar treatment — but clearly a non-starter.\u00a0 The Cruel and Unusual Punishment claim had a little more to it, but (given our anemic Eighth Amendment jurisprudence in noncapital cases) not much.\u00a0 As I tell my Sentencing students, the plurality decision in Ewing v. California<\/em>, 538 U.S. 11 (2003), effectively adopted a rational-basis test for noncapital sentences: as long as a sentence can be rationally seen as furthering any of the several traditionally recognized purposes of sentening, it will be upheld.\u00a0 (Justice Scalia’s concurring opinion is right on the money in asserting that the test is not really\u00a0a “proportionality” test, notwithstanding the plurality’s use of the term.)\u00a0\u00a0Given that\u00a0Ewing <\/em>itself upheld a mandatory minimum\u00a0of twenty-five years for shoplifting, a defendant like Nagel complaining about a ten-year term is not likely to get much traction.<\/p>\n

Still, while there was not much doctrinal basis for the Seventh Circuit to do anything but uphold Nagel’s sentence, I am disappointed that the court seemed to embrace the rationality of the ten-year mandatory minimum without much reservation.\u00a0\u00a0As noted above, it was adopted as part of the Adam Walsh Act, which is\u00a0now recognized as an unusually clumsy and\u00a0costly\u00a0attempt to punish and control sex offenders<\/a>.\u00a0 And, in general, mandatory minimum statutes are bad policy: they supplant the informed judgment of the Sentencing Commission and individual judges with crude, one-size-fits-all sentencing.\u00a0 But the Seventh Circuit nonetheless seemed to have no\u00a0perceptible\u00a0difficulty with\u00a0the AWA mandatory minimum:<\/p>\n

Because individuals who violate \u00a7 2422(b) always present a serious danger to children, it was entirely rational for Congress to conclude that violations of \u00a7 2422(b) are always serious enough to require a mandatory minimum sentence.\u00a0 In contrast, while the drug offenses enumerated in [the safety-valve law] are also serious, particular drug offenders present varying degrees of risk to the community depending on the circumstances.<\/p><\/blockquote>\n

It’s not clear to me why the court thinks \u00a7 2422(b) violators “always present a serious danger to children,” while “particular drug offenders present varying degrees of risk.”\u00a0 Interestingly, these assertions do not seem presented as characterizations of what Congress <\/em>found to support \u00a7 2422(b), but as the court’s own understanding of empirical truth.\u00a0 And the assertions are surely overstated.\u00a0 Section 2422(b) encompasses a wide range of conduct, covering enticement of anyone under age 18 to engage in sexual activity in violation of state law.\u00a0 Although no one can be pleased about unmarried teenage couples\u00a0having sex, that sort of conduct is very different in blameworthiness and dangerousness\u00a0from the sort of predatory or\u00a0pedophiliac behavior that the court seemed to be equating with violations of \u00a7 2422(b).\u00a0 Just as drug offenders present “varying degrees of risk,” so do sex offenders.<\/p>\n

Of course, none of this is to disagree with the bottom-line result the court reached.\u00a0 I just mean to suggest it would have been better if the court could have gotten to that result\u00a0without reinforcing the unfounded stereotype that all sex offenders are predators and pedophiles.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit had only two new opinions in criminal cases last week, with both focusing on sentencing issues.\u00a0 The first, United States v. Abbas, clarified the harmless\u00a0error doctrine\u00a0as it relates to\u00a0mistaken sentencing calculations.\u00a0 The second, United States v. Nagel,\u00a0considered the constitutionality of a ten-year mandatory minimum for enticement of a minor.\u00a0 By some coincidence, […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","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-4437","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\/4437","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=4437"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/4437\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=4437"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=4437"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=4437"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}