Articles Posted in U.S. Court of Appeals for the Seventh Circuit

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An officer stopped a car for expired license plates. Barry, the driver, did not have registration papers, and professed not to know who owned the car or where he was going. Fadiga, the passenger, replied that “a friend” owned the car and produced a rental agreement. The car’s return was past due; the agreement did not authorize either man to drive the car. When Fadiga opened his wallet to extract his driver’s license, the officer saw multiple plastic cards and sought permission to search the car; both consented. The officer found a bag full of gift cards and requested a card reader. About 30 minutes later the reader arrived and detected that the cards had been tampered with. The Seventh Circuit affirmed Fadiga’s conviction for possession of unauthorized “access devices,” 18 U.S.C. 1029(a)(3), upholding denial of a motion to suppress. The delay between the call and the reader’s arrival was justified by reasonable suspicion that the men possessed doctored gift cards. The court noted that neither man was authorized to drive the car; even without waiting for a reader, the police were entitled to detain them. The court also rejected a discrimination claim. The venire from which the jury was selected comprised 48 persons, none of them black. Defense counsel did not show discrimination in the venire's selection under 28 U.S.C. 1861. View "United States v. Fadiga" on Justia Law

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Paulette helped found an East St. Louis, Illinois street gang during the late 1980s. By 2012 he and the gang were trafficking large amounts of drugs. Paulette led the gang and managed its drug trade, even controlling the sale of illegal drugs in nearby Washington Park, with many people working for him. Paulette sold 105 grams of cocaine to an informant during two controlled buys in 2014. Two months later, authorities were waiting when Paulette and eight travel companions got off a train in St. Louis, returning from a supply run to Texas. Seven of them were carrying a total of 2.4 kilograms of cocaine in packages concealed under their clothing. Paulette eventually pled guilty to eight counts related to drug trafficking and was sentenced to a total of 300 months in prison. The Seventh Circuit affirmed the sentence, rejecting Paulette’s arguments about the scope of the conspiracy and that the district court, in calculating his imprisonment range under the Sentencing Guidelines, wrongly counted certain years of drug dealing as relevant conduct under U.S.S.G. 1B1.3. Paulette admitted, through his plea agreement, that the conspiracy had “involved” at least five kilograms of cocaine and at least 50 grams of actual methamphetamine. View "United States v. Paulette" on Justia Law

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In 1984, Ben-Yisrayl was convicted in Indiana state court of capital murder, rape, criminal confinement, and burglary. The case bounced back and forth for many years in the state courts as the death sentence and other issues were litigated on direct review and in postconviction proceedings, eventually resulting in a 60-year sentence on the murder conviction. In the meantime, Ben-Yisrayl pursued habeas relief in federal court under 28 U.S.C. 2254. Because he had not completed state post-conviction review, the district judge stayed the proceedings. When the state courts finally finished with the case, the judge lifted the stay and ordered the state to respond to the petition. Indiana did so. Ben-Yisrayl failed to file his reply within the allotted time, so the case proceeded to decision without a reply brief from him. The judge denied relief on all grounds without an evidentiary hearing and denied Ben-Yisrayl’s motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. The Seventh Circuit affirmed, noting that Ben-Yisrael had waived his only argument on appeal: that his resentencing counsel was constitutionally ineffective for failing to introduce “a veritable mountain of mitigation evidence.” View "Ben-Yisrayl v. Neal" on Justia Law

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Radford boarded a train in Flagstaff, to deliver heroin to Toledo. The train stopped in Galesburg. Officer Mings, who goes to the station daily to study passengers, noted indicators of drug trafficking. Radford had purchased a one-way ticket two days earlier, paying a premium for a roomette, and was traveling between locations associated with illegal drugs. Radford had been arrested seven years earlier for assisting undocumented aliens and for possessing marijuana. Mings, in uniform, knocked on Radford’s door and stated that he was doing “security checks” for ”illegal narcotics.” Radford answered Ming’s questions. He asked to search her luggage. Radford responded, “I guess so. You’re just doing your job.” He never advised Radford that she could refuse his requests. The search revealed heroin. The Seventh Circuit affirmed denial of her motion to suppress, finding that the encounter was consensual, not a seizure, and that Radford voluntarily consented to the search. Even with no basis for suspecting a particular individual, officers may pose questions, request identification, and request consent to search—"provided they do not induce cooperation by coercive means.” No seizure occurs if “a reasonable person would feel free to … terminate the encounter.” Rejecting claims of intimidation, the court noted Mings did not enter Radford’s roomette before her consent, told her why he wanted to search, and did not threaten Radford; there cannot be a rule that an "officer is forbidden to speak to a person of another race.” View "United States v. Radford" on Justia Law

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Wheeler pleaded guilty to an attempt to commit Hobbs Act robbery, 18 U.S.C. 1951(a)), and to discharging a gun during that crime, 18 U.S.C. 924(c)(1)(A)(iii). The plea did not reserve any issue for appeal. The court sentenced him to 108 months for the Hobbs Act offense and the required consecutive 120 months for the firearms offense. The Seventh Circuit affirmed, rejecting Wheeler’s argument that attempted robbery is not a “crime of violence” because an attempt to rob a retail establishment does not have the use of physical force as an element and the residual clause is unconstitutionally vague. Whether attempted Hobbs Act robbery satisfies the elements clause in section 924(c) is a statutory issue; an unconditional guilty plea waives any contention that an indictment fails to state an offense. The court also rejected Wheeler’s argument that he should be resentenced in light of a 2017 Supreme Court holding that 18 U.S.C. 924(c)(1)(D)(ii), which requires a sentence under section 924(c) to run consecutively to the sentence for the offense in which the firearm was used, does not forbid the court to choose a term of imprisonment for the predicate offense so that the aggregate imprisonment comports with 18 U.S.C. 3553(a) sentencing criteria. View "United States v. Wheeler" on Justia Law

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On remand, court was entitled to rely upon the record established at the original sentencing concerning the Guidelines range. Armand pleaded guilty to distributing crack and powder cocaine, 21 U.S.C. 841(a)(1). Applying Amendment 782 decreased the total offense level, for a Guidelines range of 84-105 months. At his hearing, Armand repeatedly acknowledged that Guidelines range, but contended that the court should depart downward to impose a sentence that would apply if the crack and powder cocaine Guidelines reflected a one-to-one ratio; the court declined and imposed a sentence of 108 months’ imprisonment. On remand for resentencing, Armand did not dispute that range, but reiterated his argument regarding the sentencing disparity and his mitigation arguments. The court discussed the sentencing factors of 18 U.S.C. 3553(a) and sentenced Armand to 104 months’ imprisonment, recognizing efforts Armand undertook to improve his life while imprisoned. The court expressed skepticism that mental health treatment and his age would lower his risk of recidivism. The court also stated that its position on the crack cocaine Guidelines had not changed since the original sentencing hearing, and declined to decrease the ratio. The Seventh Circuit affirmed. The court was entitled to rely upon the record established at the original sentencing. View "United States v. Armand" on Justia Law

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Seventh Circuit finds that 10 years of prison segregation raised serious constitutional concerns. In 1989, Isby was incarcerated for robbery resulting in serious bodily injury. Months later, Isby hit a prison counselor. Officers gassed Isby and entered his cell. During the altercation, a dog was killed, and Isby stabbed two officers. Isby was convicted of attempted murder and battery, and sentenced to an additional 40 years. Isby was moved among Indiana prisons and received several major‐conduct reports. Since October 2006, Isby has been in long‐term segregation. He filed suit under 42 U.S.C. 1983, citing the Eighth Amendment and the Due Process Clause. Unaware that Isby had accumulated three “strikes” for filing frivolous suits or appeals and was restricted under the Prison Litigation Reform Act from seeking pauper status, 28 U.S.C. 1915(g), the court granted Isby’s request to proceed in forma pauperis, but rejected his claims, and allowed him to appeal as a pauper. The Seventh Circuit declined to dismiss the appeal, affirmed with respect to the Eighth Amendment claim, and remanded for further proceedings on Isby’s due process claim. The court noted serious constitutional concerns: the “repeated issuance of the same uninformative language (without any updates or explanation of why continued placement is necessary) and the length of Isby’s confinement, could cause a reasonable trier of fact to conclude that Isby has been deprived” of liberty without due process. View "Isby v. Brown" on Justia Law

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Challenge to sentencing as an armed career criminal, based on Supreme Court’s holding in “Johnson,” is precluded by waiver in plea agreement. Carson robbed a convenience store by pulling a gun on the cashier. After he was apprehended, he pleaded guilty to Hobbs Act robbery, 18 U.S.C. 1951(a), brandishing a firearm in furtherance of a crime of violence, section 924(c), and possessing a firearm as a felon, section 922(g)(1). He waived his right to appeal, with limited exceptions; the prosecution agreed to recommend a 3-level reduction for acceptance of responsibility and a prison sentence of 272 months, at the low end of the range calculated by the parties based on a shared assumption that Carson would be sentenced as an armed career criminal, 18 U.S.C. 924(e) The district court sentenced Carson to 272 months as an armed career criminal, classifying as violent felonies prior convictions for robbery and armed robbery. The Seventh Circuit dismissed Carson’s appeal, in which he argued that under Johnson v. United States (2010), none of his prior convictions was a violent felony. The appeal waiver in Carson’s plea agreement precluded that argument. View "United States v. Carson" on Justia Law

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Enhancement for possession of a firearm capable of accepting a large-capacity magazine was appropriate, despite defendant’s claim that he only constructively possessed the gun at issue. After a police officer observed an apparent drug transaction, Cherry and Crews fled. They crashed their car, in which the officers found hundreds of individual capsules of heroin, numerous effects related to the sale of heroin, and a Glock .40 caliber pistol. They also found a 9 mm pistol with 16 rounds in the magazine and one round in the chamber, in a trash can where Crews had been observed throwing an object. Cherry pleaded guilty to four counts involving heroin distribution and gun possession, without a plea agreement. The district court applied U.S.S.G. 2K2.1(a)(3), which enhanced his base offense level for possession of a firearm capable of accepting a large-capacity magazine. He was sentenced to 106 months’ imprisonment. The Seventh Circuit affirmed, rejecting Cherry’s argument that he constructively possessed the firearm at issue as it was actually possessed by Crews. Cherry pled guilty to knowingly possessing the gun, making it relevant conduct under section 1B1.3(a)(1)(A). View "United States v. Cherry" on Justia Law

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Unreliable corporate meeting minutes were properly excluded in tax fraud trial. Petrunak was the sole proprietor of Abyss, a fireworks business regulated by ATF. In 2001, ATF inspectors inspected Abyss and reported violations. An ALJ revoked Abyss’s explosives license. Abyss went out of business. Five years later, Petrunak mailed the inspectors IRS W-9 forms requesting identifying information and then sent them 1099s, alleging that Abyss had paid each of them $250,000. Because the inspector’s tax return did not include the fictional $250,000, the IRS audited her and informed her that she owed $101,114 in taxes; she spent significant time and energy unraveling the situation. Petrunak submitted those sham “payments” as business expenses; he reported a loss exceeding $500,000 in his personal taxes. Petrunak admitted to filing the forms and was charged with making and subscribing false and fraudulent IRS forms, 26 U.S.C. 7206(1). He sought to introduce corporate meeting minutes under the business records exception, claiming that the records would have demonstrated his state of mind in preparing the forms. The minutes included statements bemoaning that the IRS was not more helpful, and declarations that the ATF agents perjured themselves. The Seventh Circuit upheld exclusion of the records, noting that the records contained multiple instances of hearsay and had no indicia of reliability. View "United States v. Petrunak" on Justia Law