Justia Criminal Law Opinion Summaries

Petitioner entered a blind plea of guilty with respect to gang-related murders in 1992 and a state court entered judgment on two counts of intentional murder. She was sentenced to life imprisonment, the mandatory minimum for double homicide. After exhausting state court remedies, she filed a petition for habeas relief, alleging ineffective assistance of counsel. The district court concluded that many of the claims were defaulted and that others failed on the merits. The Seventh Circuit affirmed. Petitioner preserved only questions of whether her attorney was ineffective for failing to investigate a particular witness; failing to obtain psychological evidence to support an argument that her confession was involuntary; and failing to recognize that another witness had made inconsistent statements and had motive to lie. All fail on the merits; there was no reason to believe that any of the alleged deficiencies changed the outcome.

Defendants committed a kidnapping for ransom to extract payment of a drug debt, abducting the victim in Indiana, taking her to Illinois, and holding her for two days before federal agents rescued her. They entered pleas of guilty to kidnapping, 18 U.S.C. 1201(a)(1)-(2) and appealed their sentences of 168 and 235 months. The Seventh Circuit affirmed. Application of a six-level enhancement, U.S.S.G. 2A 4.1(b)(1) for kidnapping demanding a ransom was not impermissible double counting There is no general prohibition on double-counting; the default rule is that the same conduct may determine the base offense level and also trigger cumulative application of enhancements and adjustments unless a specific guideline instructs otherwise. U.S.S.G. 1B1.1 cmt. n.4. The judge adequately addressed arguments in mitigation. Finding no nonfrivolous issues for appeal the court granted counsels' motion to withdraw.

Defendant was sentenced to 60 months for bankruptcy fraud, 144 months for obstruction of justice, and 120 months for possession of child pornography, all to run concurrently. The Seventh Circuit remanded with directions that to vacate either the bankruptcy fraud conviction or the obstruction of justice conviction, recalculate the intended loss, and resentence defendant. On remand the district judge imposed the same total sentence but reduced the special assessment by $100. The Seventh Circuit affirmed, noting that appeal after remand is limited to issues that could not have been raised in the prior appeal. Vacating defendant’s conviction for obstructing justice for double jeopardy reasons did not provide a compelling reason for a shorter sentence. The overall sentence was within the adjusted combined guidelines range (135 to 168 months) for multiple counts of conviction. U.S.S.G. 3D1.4, 5G 1.2(d). The court rejected defendant's arguments concerning the child pornography charge, which involved pictures he had taken of his 16-year-old sister-in-law and had used to try to blackmail his ex-wife. The only changed circumstance, a defiant allocution, undermines rather than supports the challenge to the sentence reimposed on remand.

Defendant entered a plea of guilty to manufacturing marijuana, 21 U.S.C. 841(a)(1), and possession of a firearm by an unlawful user of a controlled substance, 18 U.S.C. 922(g)(3). He was convicted of possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. 924(c) and sentenced to 60 months in prison, to be served consecutively to his 13-month sentence for the plea counts, followed by three years of supervised release, and a $300 special assessment. The Seventh Circuit affirmed, rejecting a claim that section 924(c) was void for vagueness, a challenge to the sufficiency of the evidence, and a challenge to expert testimony.

In 2007, defendant was convicted of attempting to coerce or entice a minor to engage in sexual activity, 18 U.S.C. 2422(b), and received a 262-month prison term. The Seventh Circuit vacated the sentence. On remand, the district court, relying in part on USSG 2G1.3(d) imposed a sentence of 210 months in prison. The Seventh Circuit affirmed. Where a conviction under 18 U.S.C. 2422(b) involves multiple minors, USSG 2G1.3(d) directs a sentencing court to treat the relevant conduct with each person as a separate count. Unlike the statute, however, 2G31.(d) does not contain an "attempt" provision. This means that the government must prove that each relevant person was a minor. The defendant failed to raise whether the "victim" fell within the definition of "minor" at his first sentencing hearing; the remand did not give him the right to raise any and all sentencing arguments and the district court was within its discretion in refusing to consider the argument.

Plaintiff, active in Wisconsin’s "open carry" movement, carried a holstered handgun into stores and was arrested for disorderly conduct. His gun was confiscated, but eventually returned. He was not prosecuted. He sued arresting officers and municipalities under 42 U .S.C. 1983, asserting false. He claimed retention of his guns was an unconstitutional seizure and violation of the Privacy Act because officers obtained his Social Security number during booking. The district court granted defendants summary judgment on all claims. In 2011, Wisconsin adopted a concealed-carry permitting regime and amended its statutes to clarify that openly carrying a firearm is not disorderly conduct absent circumstances indicating criminal or malicious intent. WIS. STAT. 947.01(2). Also in 2011, plaintiff was convicted of homicide, mooting his claim for prospective declaratory relief. The Seventh Circuit affirmed with respect to damages claims. The officers are entitled to qualified immunity. At the time, the state constitutional right to bear arms was new, Wisconsin law was unclear, and the Supreme Court had not decided a case applying the Second Amendment to States. It was reasonable for officers to believe that the circumstances gave them probable cause for a disorderly conduct arrest. Delayed return of the handguns was not a "seizure."

Defendant entered a plead of guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the guidelines range. Defendant argued that 64 months was enough. The judge stated that although the guidelines are not binding, "judges are told that [they] are to be followed" and imposed the 68-month sentence suggested by the government. The Seventh Circuit vacated and remanded for resentencing. The district judge apparently rejected the request for a modest below-guidelines sentence simply because it was modest and below the guidelines; it was unclear whether he gave adequate consideration to defendant's argument.

Defendant has three prior felony armed robbery convictions, all arising from a crime spree that occurred more than 35 years ago. Since his 1990 release from prison, he has lived a fairly crime-free life. After his step-mother reported that he was selling guns that were part of his father's estate, he entered a plea of guilty as a felon in possession of a firearm. The district court imposed the mandatory minimum sentence under the Armed Career Criminal Act, 15 years in prison followed by three years of supervised release, 18 U.S.C. 922(g) and 924(e)(1). The Seventh Circuit affirmed, acknowledging some sympathy for the defendant, but stating that his arguments were for the legislature.

Defendant, a U.S. citizen, had a romantic relationship and lived with an illegal alien, who was later arrested on drug charges. After being deported to Mexico, he returned illegally and again lived with defendant. When he was again arrested on drug charges, defendant was convicted under 8 U.S.C. 1324(a)(1)(A), (iii), as one who knowingly or in reckless disregard of the fact that an alien was in the U.S. in violation of law, concealed, harbored or shielded such alien. The statute also covers attempts and transportation. The district judge sentenced her to two years' probation and to pay a $200 fine. The Seventh Circuit reversed, distinguishing between "harboring" and providing shelter, without concealing or shielding from detection.

Defendant was convicted of 14 counts of willfully assisting in preparation of tax returns containing materially false and fraudulent claims, including phony medical and business expenses and charitable donations. The evidence at trial proved tax loss of $31,849. At sentencing, the government proposed a tax loss figure of $1.6 million by identifying 662 returns that contained materially false claims similar to those proven at trial and eliminating contested returns. The district court discounted the loss to $400,000- to $1-million to compensate for possible selection bias in a sample of 100 returns and imposed a sentence of 42 months. The Seventh Circuit affirmed. The tax loss figure was not outside the realm of permissible computations. The district court considered defendant's family circumstances as well as substantial aggravating circumstances, including her education, financial and intellectual abilities, knowledge of the tax code and duty to provide truthful information, and that her actions caused the IRS to audit her clients. Defendant also failed to appear for a sentencing hearing, was dishonest to the court, frivolously denied the court had jurisdiction over her, and similarly asserted she was an independent sovereign protected by the Eleventh Amendment.