7th Circuit Criminal Law Alert

Upward Departures,

USA v. Ronald Valle, 03-3293 & 03-3294,  Valle was sentenced to 163 months' imprisonment for bank robbery and for violation of his supervised release. After the district court departs upward from the guidelines, Valle appeals his sentence. The 7th Circuit affirms the upward departure.

In upholding the departure, the 7th Circuit states that "All that is necessary now to sustain a sentence above the guideline range is an adequate statement of the judge's reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant." 

As such the concept of 'departures' has been rendered obsolete in the post-Booker world.  What is at stake is the reasonableness of the sentence, not the correctness of the 'departures'.

Consequently, the fact that the district court did not establish a precise link between the degree of the departure and the structure of the Guidelines, as was required pre-Booker, is not a basis for disturbing the district court's sentence.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Rule 11 Plea Colloquy Requirements, Downward Departure Not Reasonable

USA v. Rea-Beltran, 04-2305.  Upon being charged with illegal re-entry, see 8 U.S.C. § 1326, and use of a false passport, see 18 U.S.C. § 1546(a), Rea-Beltran entered into a plea agreement with the Government, which was presented to the district court. However, the district court, unsatisfied that Mr. Rea-Beltran had established a factual basis for his guilty plea, rejected it and ordered trial. Rea-Beltran then was convicted by a jury of illegal re-entry and use of a false passport; he was sentenced to 120 months' incarceration. 

Rea-Beltran appeals whether the district court should have allowed him to plead guilty.

It is well-established that a criminal defendant has "no absolute right to have a guilty plea accepted." Santobello v. New York, 404 U.S. 257, 262 (1971). Even when presented with a constitutionally valid plea attempt, a court retains a large measure of discretion to decide whether a guilty plea is appropriate in the circumstances of a particular case. See North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970).

To guide the exercise of this discretion, Federal Rule of Criminal Procedure 11 requires that an extensive plea colloquy take place between the defendant and the district court before the entry of a guilty plea. The primary purpose of the colloquy is to safeguard against the hasty acceptance of guilty pleas that are not made in a knowing and voluntary fashion. Thus, the rule instructs the court, in conducting the colloquy, to make sure that the defendant understands the trial rights that he is waiving, the nature of the charge, the possible penalties, his right to appeal and the court's discretion to depart from the Sentencing Guidelines. See Fed. R. Crim. P. 11(b)(1), (2).

In addition to the "knowing and voluntary" inquiry, Rule 11 requires the district court to satisfy itself that a "factual basis" exists for the guilty plea. Id. 11(b)(3). The factual basis need not arise only from the defendant's admissions, however; we have held that the court "may find the factual basis from anything that appears on the record, which includes the government's proffer." United States v. Musa, 946 F.2d 1297, 1302 (7th Cir. 1991)

To facilitate meaningful appellate review and "foster the sound exercise of judicial discretion," we require that courts state on the record "a sound reason" for rejecting a plea. United States v. Kraus, 137 F.3d 447, 453 (7th Cir. 1998) (internal quotation marks omitted). Failure to do so requires reversal.

Here, the district court's rejection of Rea-Beltran's guilty plea appears to have rested on the legal misapprehension that Mr. Rea-Beltran would be innocent of illegal re-entry if he had thought that his re-entry was permitted. As we just have explained, Rea-Beltran's mistaken belief would offer him no defense to the charge of violating § 1326(a). Thus, in light of the court's misunderstanding of the law, we have no choice but to find an abuse of discretion in the court's refusal to accept Rea-Beltran's guilty plea; " '[a] district court by definition abuses its discretion when it makes an error of law.' " United States v. McMutuary, 217 F.3d 477, 483 (7th Cir. 2000) (alteration in original) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

For the foregoing reasons, the 7th Circuit vacates Mr. Rea-Beltran's conviction and remand with instructions to permit Mr. ReaBeltran to offer a guilty plea on the terms originally agreed to by the Government.

USA v. Wallace, 05-3675.  In this appeal, the 7th Circuit again confronts the question of the proper approach to appellate review of the reasonableness of a federal sentence. Wallace pleaded guilty to wire fraud, 18 U.S.C. § 1343. Despite the fact that the Sentencing Guidelines advise that a term between 24 and 30 months is appropriate for Wallace, the district court judge decided that the reasonable sentence for Wallace was a significantly more lenient one: three years' probation plus a $2,000 fine. 

HELD:  the 7th Circuit concludes that the district court failed adequately to justify such a significant deviation from the recommended guideline range. 

The district court judge accepted Wallace's argument that the guidelines overstated the gravity of his crime. The district court gave Wallace a "World Series Break" consistent with § 3553(a)(1).  The district court considered Wallace's  history and personal characteristics and could not "help but be impressed" that in spite of a difficult childhood, psychological problems, and a gambling addiction, he had "really had an exemplary life until he faltered and did this one ridiculous, stupid crime."

The 7th Circuit finds that after Booker the concept of "departures" is outmoded. United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005).  Two things are critical: first, whether the district court's choice of sentence is adequately reasoned in light of the § 3553(a) factors, and second, whether the sentence can ultimately be deemed a reasonable one.   The substantive inquiry looks at the sentence imposed, not at all the other hypothetical sentences that might have been chosen.

In short, reasonableness is something that must be assessed at retail; wholesale conclusions that are nothing but disagreements with the guidelines are impermissible.  Although the court's review of Wallace's individual traits was helpful, we are troubled by the fact that the judge said that she thought that culpability should be measured by actual loss rather than intended loss. This was not an appropriate consideration, as the guidelines have already made the judgment that intended loss is what counts. See U.S.S.G. § 2B1.1, cmt. n.3(A).   

In closing, the district court acknowledged that it was giving Wallace a significant break-a "World Series" break, in fact. Such a break requires, we hold, a "World Series" explanation.  Reversed and Remanded.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

4th Amendment Anonymous Tip, Career Offender, Restitution

USA v. Drake, 04-4240.  A jury found James Drake guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1).  Drake appeals arguing that the gun should have been suppressed. 

Drake's case involves a 911 call which leads to a traffic stop and the finding of the gun in plain view by the police.  During the 911 call, the caller leaves her name and corroborative information as to the car that Drake is in. 

The district court denied Drake's suppression motion distinguishing Drake's situation from Florida v. J.L., 529 U.S. 266 (2000) (holding that uncorroborated anonymous tip was insufficient to justify an investigatory stop of individual suspected of possessing a gun) finding that the 911 call was anonymous but sufficiently corroborated for the traffic stop. 

The 7th Circuit  starts by stating that since the 911 caller left her name, the call was not anonymous and JL does not control. Nevertheless, the traffic stop was justified only if the  911 report of an emergency situation provided the police with reasonable suspicion. See United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005).

The 7th Circuit finds that the police had a reasonable suspicion for the traffic stop and search. The police may conduct an investigatory stop of a vehicle if articulable facts support a reasonable suspicion that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1 (1968). 

Here, the 7th Circuit recognizes the particular duty of police officers to speedily respond to emergency situations reported by individuals through the 911 system. "Police delay while attempting to verify an identity or seek corroboration of a reported emergency may prove costly to public safety and undermine the 911 system's usefulness. . . . The Fourth Amendment does not require the police to conduct further pre-response verification of a 911 caller's identity where the caller reports an emergency. Accordingly, an emergency 911 call is entitled to greater reliability than an anonymous tip concerning general criminality." United States v. Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004)

Interestingly, the 7th Circuit states that from now on they will presume the reliability of an eyewitness 911 call reporting an emergency situation for purposes of establishing reasonable suspicion. Requiring further indicia of reliability would only jeopardize the usefulness of the 911 system and the ability of officers to prevent further danger to the public. 

Conviction AFFIRMED and LIMITED REMAND under Paladino.

USA v. Thigpen, 05-1866.  Thigpen pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a).  Thigpen appeals the district court's finding that he is a career offender.  Thigpen did not raise this issue in the district court.

The 7th Circuit discusses whether the career offender issue was waived or forfeited by Thigpen.  Waiver, of course, is the intentional relinquishment and abandonment of a known right, which precludes appellate review. See United States v. Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005). By contrast, forfeiture is simply the failure to make a timely assertion of a right and leads to plain error review. Id.

The 7th Circuit finds that Thigpen did not waive his argument, thus plain error analysis is appropriate. To establish plain error, Thigpen has to demonstrate a clear error that affects a substantial right and, moreover, impacts "the fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 733-34, 736 (1993).

In short, Thigpen loses plain error for the career offender, but wins plain error on the district court's calculation of a restitution schedule.  Here the district court improperly transferred calculation of Thigpen's restitution schedule to the probation office which is against the terms of the statute.  Thus, the 7th Circuit AFFIRMS Thigpen's sentence, but VACATES the restitution order and REMANDS for the imposition of a proper restitution schedule.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Week Ending August 4, 2006

USA v. Tony Warren, 05-2791.  Tony Warren was convicted of various charges related to a fraudulent check scheme. What makes Warren's convictions unusual is his insistence that the fraud was authorized by the United States Secret Service. Warren stipulated that he sent several altered checks purportedly made out to "A&B Electrical" to an individual named Robert Studnicka, who cashed them and kept a portion of the proceeds for himself. Police caught Studnicka, who cooperated and implicated Warren in the scheme. 

Studnicka pleaded guilty, but Warren went to trial, claiming that his behavior was authorized because he was a confidential informant for the United States Secret Service. The jury apparently disbelieved Warren's public authority defense, and convicted him on all counts. 

In a factually complex appeal, Warren claims that the government violated his right to a fair trial by  withholding  exculpatory evidence (Brady Violation) relating to his status as a confidential informant .

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution," id. at 87. In order to demonstrate a Brady violation, Warren must make three showings: (1) that the evidence is favorable to him because it is exculpatory or impeaching; (2) that the prosecution suppressed the evidence, either willfully or inadvertently; and (3) that "prejudice . . . ensued."

To start, the 7th Circuit  reviews the district court's denial of a motion for a new trial premised on alleged Brady violations for abuse of discretion.  The 7th Circuit finds that as the district court recognized, Warren is simply unable to point to any specific evidence, exculpatory or otherwise, withheld by the government. Without that, his Brady claim fails to get off the ground.

Further, the 7th Circuit finds that Warren can't show actual prejudice for the Brady violation due to the late disclosure by the government of some discovery.

In short, the 7th Circuit holds, late disclosure does not itself constitute a Brady violation. See United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002). Here, Warren used all of the information the government did provide and built a defense around his claim that he was a confidential informant.

As such, the 7th Circuit finds that the district court thus did not abuse its discretion by denying his motion for a new trial premised on a Brady violation for documentation related to his status as a confidential informant.

USA v. Keefer Jones, 04-2447.  After a jury trial, Keefer Jones was found guilty of possession with intent to distribute five or more grams of cocaine base ("crack"). See 21 U.S.C. § 841(a)(1) & (b)(1)(B). The district court sentenced Mr. Jones to 262 months' imprisonment and eight years' supervised release and ordered him to pay a $100 special assessment.

Jones' primary complaint is the denial of his 2nd motion to continue his trial date.  Jones filed a second motion for a continuance of his trial requesting additional time to obtain a handwriting analysis of the statement allegedly penned by Mr. Jones. 

The 7th Circuit finds that to prevail, Jones must show an abuse of discretion and actual prejudice in the denial of his motion to continue.   In evaluating a request for a continuance, a district court should weigh a number of factors, including the following non-exhaustive list:  1) the amount of time available for preparation; 2) the likelihood of prejudice from denial of the continuance; 3) the defendant's role in shortening the effective preparation time; 4) the degree of complexity of the case; 5) the availability of discovery from the prosecution; 6) the likelihood a continuance would satisfy the movant's needs; and 7) the inconvenience and burden to the district court and its pending case load. United States v. Vincent, 416 F.3d 593, 598 (7th Cir. 2005).

The district court took the view that it was not obliged to grant another continuance to accommodate defense counsel's tardiness in reviewing discovery materials that had been available to him. Indeed, the 7th Circuit has held that the denial of a continuance to consult with an expert regarding government evidence was not an abuse of discretion when defense counsel had failed to review the discovery in a timely manner. See United States v. Baum, 435 F.2d 1197, 1202 (7th Cir. 1971).Although Jones contends that the misunderstanding regarding who actually wrote the statement was inadvertent, such negligence does not excuse him from failing to review the statement in a timely manner to determine both the scrivener and the signer.

Furthermore, the 7th Circuit held that Jones has not demonstrated that he suffered any prejudice from the denial of his motion to continue. Since Jones had not yet hired the handwriting expert witness and obtained an analysis, the 7th Circuit is not assured that the handwriting expert would have testified that the statement was not written by Mr. Jones.

Moreover, the 7th Circuit finds that any prejudice to Mr. Jones was minimized by his counsel's examination of Government witnesses.

As such, the 7th Circuit finds that the distict court did not abuse it's discretion in denying his motion to continue.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Week ending July 27 , 2006

USA v. Marvin Smith, 04-3581.  In 1990, Smith was found guilty at trial of conspiracy to distribute in excess of 5 kilos of cocaine.  After trial, Smith was on bond and did not show up for sentencing for 14 years.  Smith appeals his 30 year sentence.  7th Circuit affirms Smith's conviction but remands for re sentencing.

In a fact intensive appeal, Smith appeals the limitation of his lawyer's cross examination of a key witness.  In short, the AUSA objects to the cross-examination by invoking the witnesses attorney/client privilege.  The 7th Circuit states that this is not a valid reason for the district court to limit cross examination as the privilege belongs to the witness not the government.  The question then becomes were Smith's 6th Amendment Rights violated? 

Since this is a "core value" 6th amendment question, the 7th Circuit reviews de novo.  The 7th Circuit decides that the "core values" (to determine a witnesses motive to lie) of cross examination were allowed in Smith's case. 

The 7th Circuit then addresses whether the "peripheral values" (the ability fro the lawyer to drive the point home to the jury) of cross examination were honored.  This is reviewed for abuse of discretion.  Since the district court's ruling allowing the government to limit cross-examination for attorney/client purposes is incorrect, the district court abused it's discretion here. 

The 7th Circuit then employs harmless error analysis to deny Smith's claim.  In short, the 7th Circuit asks but for the limitation of cross examination would the outcome of the case have been different?  Here, the answer is no as the barred cross-examination was merely cumulative.  As such Smith's conviction is affirmed. 

Smith gets a re sentencing because the district court did not do guideline analysis at the time of sentencing.

USA v. Paulino Juarez, 05-2435.  Juarez was sentenced to 20 years for possessing a firearm by a felon. Juarez appeals his denial by the district court of an evidentiary hearing on his motion to suppress evidence.  The 7th Circuit reviews this claim for abuse of discretion.

Here, Juarez submits an affidavit with his motion to suppress.  To get an evidentiary hearing, a defendant must provide sufficient information to the court for it determine that  a substantial claim is is presented on disputed issues of material fact, and these facts will determine the outcome of the motion. 

The 7th Circuit finds that Juarez's affidavit did not conflict with the officer's version of the events. Juarez points out the differences, but the 7th Circuit states that they are not material unless resolution of the disputed facts will change the outcome of the motion.  Here, Juarez concedes at oral argument that the facts in his affidavit gave the officer's   reasonable suspicion for a Terry stop.  Thus, the district court did not abuse it's discretion.

USA v. Lemuel Tyra, 05-2734.  Tyra appeals his 108 month crack possession because the district court did not use the magic words "sufficient but not greater than necessary" to meet the goals of 3553 at the time of sentencing.  Tyra did not contest his guidelines calculation.

The 7th Circuit holds that no magic words are necessary to be used by the district court to ensure that the correct sentencing standard was used.  All that must be shown is that the district court gave meaningful consideration to the sentencing factors in determining the sentence.  Here, the district court did and the sentence is affirmed.

For more about attorney Michael J. Petro, visit www.mjpetro.com .