Articles Posted in U.S. 7th Circuit Court of Appeals

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White Feather killed his cellmate, Running Bear, in their federal prison cell by disemboweling the victim using a disassembled Bic razor, having first choked him into unconsciousness during a late-night fight. White Feather was charged with murder by a federal prisoner, 18 U.S.C. 1118. Before trial the government moved to preclude him from offering a defense of self-defense. The district judge deferred ruling and permitted White Feather to present evidence in support of the defense at trial. Ultimately, the judge concluded that White Feather was not entitled to a self-defense jury instruction because the evidence did not support it. The jury found White Feather guilty, The Seventh Circuit affirmed, agreeing that, even accepting that Running Bear was the initial aggressor, as a matter of law that Running Bear “was not imposing an imminent threat of … harm or deadly force” when White Feather sliced into his abdomen with the razor. View "United States v. White Feather" on Justia Law

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A removable alien who has lived in the U.S. for seven years (including five as a permanent resident) is entitled to seek cancellation of removal unless he has committed an “aggravated felony.” 8 U.S.C. 1229b(a)(3). Velasco, a citizen of Mexico who was admitted for permanent residence, became removable after multiple criminal convictions. An immigration judge concluded that one of these convictions was for “sexual abuse of a minor”, which 8 U.S.C.1101(a)(43)(A) classifies as an aggravated felony, and that Velasco was, therefore. ineligible for cancellation of removal. The BIA affirmed, citing the definition of “sexual abuse” in 18 U.S.C. 3509(a)(8) rather than the one in 18 U.S.C. 2243(a). The conviction at issue was under Cal. Penal Code 261.5(c), which makes it a crime to engage in sexual intercourse with a person under the age of 18, if the defendant is at least three years older. Velasco was 18 at the time; the girl was 15. Deferring to the BIA, the Seventh Circuit affirmed. View "Velasco-Giron v. Holder" on Justia Law

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Diggs pleaded guilty to possession with intent to distribute 50+ grams of crack cocaine and 500+ grams of powder cocaine; he admitted that he supplied wholesale quantities to co-defendants. The district court accepted recommendation that Diggs be held accountable for 5.7 kilos of crack cocaine and 2 kilos of powder cocaine and applied two two-level enhancements for using a dangerous weapon and having a leadership role. Neither was challenged. The government opposed cooperation credit for assistance in apprehending co-conspirators because he allegedly tipped off his co-conspirators. The court determined that Diggs’ cooperation did not merit an adjustment, but did consider co-operation as a mitigating factor when setting the sentence. Under advisory guidelines, Diggs’ sentence was 360 months to life. Impressed by the change Diggs had shown while incarcerated and moved by Diggs’ testimony, the court sentenced Diggs to 282 months. After sentencing, Amendment 750 took effect, retroactively lowering the base offense level for possession with intent to distribute crack cocaine, so that his guideline was 292–365 months. Diggs argued that the original 78 month downward variance should apply to the retroactive guidelines, for a new sentence of 214 months. The court rejected the motion, holding that USSG 1B1.10 prohibits a court from reducing a sentence to a term less than the minimum of the amended guideline range unless the original sentence had been reduced in response to a government motion for substantial assistance. The Seventh Circuit affirmed. The district court properly applied section 1B1.10, which does not offend the ex post facto clause. The commission did not exceed its authority in its attempt to revise this policy. View "United States v. Diggs" on Justia Law

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In 1998 Kashamu, a dual citizen of Nigeria and Benin, was charged as the leader of a conspiracy to import and distribute heroin. Kashamu never entered the U.S. His location was unknown. The government did not ask that he be tried in absentia. Eleven other defendants pleaded guilty; one was convicted. Months later, Kashamu was arrested in England. There were two unsuccessful extradition proceedings. After the 2003 ruling, Kashamu left England. Six years later, in Chicago district court, he moved to dismiss the indictment based on the English judge's findings, concerning possible confusion between Kashamu and his brother. The Seventh Circuit rejected his arguments. Kashamu remains in Nigeria, a businessman and a ruling party politician. Although there is an extradition treaty, the government has made no effort to extradite him. In 2014 Kashamu sought to dismiss on the grounds that the court has no personal jurisdiction because he has never been in the U.S. and that the Sixth Amendment speedy-trial clause bars prosecution. The Seventh Circuit again disagreed. Even if Kashamu has constitutional rights, they are not violated. The court has no current jurisdiction, but should he come to the U.S., he can be tried. Denial of a motion to dismiss on speedy-trial grounds is a nonappealable interlocutory order; until proceedings are complete, the causes and duration of the delay, the defendant’s responsibility for it, and the harm from the delay, cannot be determined. At any time “he had only to show up” to obtain resolution of his guilt or innocence. View "Kashamu v. Norgle" on Justia Law

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McDowell, Cooper, and others were charged with conspiring to possess with intent to distribute and to distribute one kilogram or more of hero-in in Rockford, Illinois. McDowell was also charged with six counts of distributing heroin, 21 U.S.C. 841(a)(1). Cooper was also charged with four counts of distributing heroin, one count of possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. 924(c)(1)(A), and being a felon in possession of a firearm, 18 U.S.C. 922(g). The Seventh Circuit affirmed their convictions and sentences. A jury could reasonably conclude that they were co-conspirators given the evidence that McDowell and Cooper coordinated to obtain and sell drugs. Because there was sufficient evidence to support his conspiracy conviction, the district court correctly held McDowell responsible for his co-conspirators’ possession of firearms in furtherance of the conspiracy. The court correctly found McDowell and Cooper responsible for more than one but less than three kilograms of heroin based on a co-defendant’s admission and other reliable evidence and correctly enhanced McDowell’s offense level for being a leader of the conspiracy given the evidence that the conspiracy involved at least five individuals and he organized and exerted control over them. View "United States v. McDowell" on Justia Law

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Zuniga was arrested for pointing a gun at his ex-girlfriend outside a bar and was charged with being a felon in possession of a firearm and possessing cocaine. Both the speaker and the person who heard the speaker’s statement that the speaker had seen Zuniga holding the gun testified. Zuniga was convicted and received an enhanced sentence because he had three prior convictions that qualified him as an armed career criminal. The Seventh Circuit affirmed. The statement was properly admitted under the excited utterance exception to the hearsay rule, but even if it was not, the error would be harmless. Rejecting an argument that the jury was required to find that he had three qualifying felony predicate convictions that made him eligible for an enhanced mandatory minimum sentence, the court stated that prior convictions are sentencing factors that may be determined by a judge. Zuniga did not establish by a preponderance of the evidence that the Illinois Department of Corrections sent him a restoration-of-rights letter, so the court rejected a claim that he should not have been given an enhanced sentence because his civil rights were restored, thereby precluding two of his convictions from being considered predicate offenses. View "United States v. Zuniga" on Justia Law

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In 2000 the SEC charged First Choice and others with fraud. The district court appointed a receiver to take charge of the defendants’ assets for victims of the $31 million fraud. The receiver found that some assets had been used to acquire oil and gas leases in Texas and Oklahoma and attempted to sell them and use the proceeds to compensate the victims. Over the next 14 years, third parties sought to establish ownership interests in the leases. In this case, CRM sought to contest the receiver’s proposed sale of oil leases in Osage, Oklahoma, which it claims to have operated since 2002. The district court denied CRM’s motion to intervene and approved the sale. The Seventh Circuit affirmed, noting that CRM knew as early as 2004 that the receiver was claiming the leases, but waited until the protracted and expensive receivership was finally moving toward an end and the receiver’s assets were dwindling to take action. View "Sec. & Exch. Comm'n v. First Choice Mgmt. Servs., Inc." on Justia Law

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Harper was arrested, under a warrant for a parole violation, in the back house bedroom on a two-house property. Agents recovered a loaded pistol from under the nightstand and suspected cocaine base from the top of that nightstand. Fingerprint analysis revealed Harper’s fingerprints on the weapon. In the closet, they found more suspected cocaine base. Agents also found a loaded Glock semiautomatic pistol, ammunition, clear plastic bags of controlled substances, a digital scale, and $368 in cash. Laboratory analysis identified the controlled substances as 148.6 grams of heroin, 105.4 grams of cocaine base, and 1 gram of marijuana. Harper claimed that he resided at the front house with his aunt and used the back house only when he had women visiting and that others lived in the rear house and were responsible for the drugs, but later pled guilty as a felon in possession of a weapon, 18 U.S.C. 922(g)(1). Applying the enhancement in U.S.S.G. 2K2.1(c), for offenses involving unlawful receipt, possession or transportation of firearms or ammunition and prohibited transactions involving firearms or ammunition, rather than section 2X1.1, which applies to use or possession of a firearm in connection with another felony, the district court sentenced Harper to a term of 100 months. The Seventh Circuit affirmed, rejecting Harper’s argument that application of 2K2.1 was improper for lack of reliable evidence of any connection between the firearms offense and any drug offense. View "United States v. Harper" on Justia Law

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A government informant bought cocaine and heroin from Davis. Davis expressed an interest in robbery; the informant introduced him to an undercover agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, posing as a disgruntled drug courier. The agent recruited Davis to rob his employer’s stash house, which he said contained 50 kilograms of cocaine and was protected by armed guards. Davis recruited six others. On the day of the intended robbery, the crew (with semiautomatic firearms) met the agent in a parking lot and followed him to a warehouse for a planning session, which was recorded. The seven were arrested and charged with conspiring and attempting to possess, with the intent to distribute, five or more kilograms of cocaine, 21 U.S.C. 846; conspiring and attempting to affect interstate commerce by means of a robbery, 18 U.S.C. 1951(a), and knowingly possessing a firearm in furtherance of a drug trafficking crime and a crime of violence, 18 U.S.C. 924(c)(1)(A). Because the prosecution was based on a “sting” initiated by the government, the defendants, all African-American, sought discovery of information relevant to potential racial profiling and selective prosecution. After announcing its intent not to comply with the order, the government sought dismissal without prejudice to facilitate an immediate appeal. The district court granted the request. The government filed an appeal under 18 U.S.C. 3731. The Seventh Circuit concluded that because the dismissal was without prejudice, allowing the government to re-file regardless of the outcome of the appeal, it was not a final order. View "United States v. Davis" on Justia Law

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Because of inaccurate information about time served in the county jail for two theft convictions, Armanto’s release date was recalculated. After receiving orders from the court that entered his convictions and concerned about the conditions for releasing Armanto, who was previously convicted as a sex offender, employees of the Illinois Department of Corrections (IDOC) sought advice from the Office of the Attorney General. Because the court had not imposed mandatory supervision, IDOC “violated him at the door,” so that he was not released as he expected. After his release, Armato sued five IDOC employees, claiming violation of Armato’s constitutional rights in violation of 42 U.S.C. 1983 and false imprisonment.. The district court granted defendants summary judgment, finding that no rational trier of fact could find that Armato was unlawfully detained beyond his court-ordered release date. The Seventh Circuit affirmed. Armato did not suffer any injury because he was released prior to the precise date in an “Agreed Order,” the defendants were not deliberately indifferent to Armato’s incarceration, but diligently pursued relief from the AG’s Office for clarification, and Armato’s due process claims failed as a matter of law and were precluded by the remedies available to him in state court. View "Armato v. Grounds" on Justia Law