Articles Posted in US Court of Appeals for the Seventh Circuit

by
Anstice pleaded guilty to conspiring to distribute methamphetamine and was sentenced to 10 years’ imprisonment and five years’ supervised release. Five conditions of supervised release appeared in the written judgment of conviction but were not announced orally by the district court at sentencing. Three of the challenged conditions are mandated by federal statute, 18 U.S.C. 3583(d), and two are discretionary (requiring Anstice to report to the probation office within 72 hours of his release and prohibiting his possessing a firearm, destructive device, or other dangerous weapons),. All had been categorized as “mandatory” in the Presentence Investigation Report. The Seventh Circuit affirmed in part. The three conditions mandated by section 3583(d) were validly part of Anstice’s sentence even though the court failed to announce them orally at sentencing. The court vacated the other two conditions. As commonplace and sensible as the conditions may be across federal sentences, Congress has not mandated their imposition. If a district court does choose to impose them, they must be announced at sentencing; in this case, the oral sentence conflicts with the written sentence. View "United States v. Anstice" on Justia Law

by
Posada, a licensed chiropractor, owned and operated Spine Clinics, a Medicare-enrolled provider. Posada was indicted for a scheme to defraud Medicare and other insurers by submitting fraudulent claims and falsely representing that certain health care services were provided. The prosecution presented evidence that Posada billed the insurers for deceased patients and services never performed, created fake files, and failed to document the actual services rendered. Witnesses from Medicare and an insurer testified regarding the thousands of claims submitted. Two physical therapists also testified about the services they performed for Spine Clinics, how they billed Posada, and that they never performed many of the services for which he charged. Convicted of 18 counts of health care fraud, Posada’s PSR indicated an offense level of 26, based on a $4,087,736 loss amount, and recommended a term of incarceration of 63-78 months. To calculate that amount the prosecution reviewed Spine Clinic's files and when no treatment documentation was present, the amount billed was treated as a loss. The prosecution credited Posada with treating 20 patients a day, three days a week every week during the period of the fraud. Posada argued for an estimate of 25-26 patients per day and a loss amount less than $3.5 million. The district court accepted the government’s calculation and found a loss amount of $4,087,736. The Seventh Circuit affirmed that amount and Posada’s 60-month sentence, noting that the calculation was supported by the evidence at trial. View "United States v. Posada" on Justia Law

by
Arriving at Kirk’s house, Kirk and Herman saw that Kirk's mother, Daniels, had a Jimenez Arms handgun tucked into her purse. She allowed Herman to handle the gun. Herman pulled out a revolver and said, “stay seated. I don’t want to blow you guys back, but I will if I have to,” then ran outside. Kirk and Daniels pursued him. Herman spun around, with a gun in each hand, and fired a shot that flew past Daniels’s head. Herman pled guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). On remand, the court adopted the version of events set forth in the PSR, to add two offense levels because Herman “physically restrained” his victims, U.S.S.G. 2B3.1(b)(4)(B); seven levels because a firearm was discharged; and one level because a firearm was taken. It subtracted three levels for acceptance of responsibility and calculated a recommended guidelines range of 120-150 months. The court imposed the statutory maximum sentence of 120 months. The Seventh Circuit vacated, agreeing with the circuits that have found that more than pointing a gun at someone and ordering that person not to move is necessary for the application of section 2B3.1(b)(4)(B). The court “disapproved” prior holdings that allowed for the application of the enhancement based solely on psychological coercion, including the coercion of being held at gunpoint. The court requested the Clerk of Court to send the opinion to the U.S. Sentencing Commission for consideration. View "United States v. Herman" on Justia Law

by
Schmidt was camping in a national forest in Wisconsin when a Forest Service Officer approached and discovered that Schmidt, who had three felony convictions, had a handgun in his tent. Schmidt agreed to pay $1,600 in restitution to the Forest Service for having cut down trees in the national forest without authorization and pleaded guilty to possession of a firearm as a convicted felon, 18 U.S.C. 922(g)(1). During a presentence interview, Schmidt told his probation officer of his belief in white supremacy, his hatred for minority races, and his desire to relocate to Germany to embrace his Nazi roots. Schmidt had 17 adult criminal convictions for bail jumping, child abuse, taking and driving a vehicle without the owner’s consent, unlawful use of the phone to threaten harm, criminal damage to property, carrying a concealed weapon, and disorderly conduct and resisting an officer. His Guidelines range was 51-63 months imprisonment. The district court sentenced him to 48 months’ imprisonment. The Seventh Circuit affirmed, rejecting Schmidt’s argument that consideration of his beliefs at sentencing violated his First Amendment rights. Schmidt’s statements, in light of his criminal history and his continued disrespect for the law, raised a serious question in the sentencing judge’s mind as to whether he posed a threat of violent or anti-social conduct; Schmidt’s beliefs were reasonably related to a legitimate sentencing purpose. View "United States v. Schmidt" on Justia Law

by
A certified class claimed that during 2011 female inmates at an Illinois prison were strip-searched as part of a training exercise for cadet guards; the inmates were required to stand naked, nearly shoulder to shoulder with other inmates in a room where they could be seen by others not conducting the searches, including male officers. Menstruating inmates had to remove their sanitary protection in front of others, were not given replacements, and many got blood on their bodies, clothing, and the floor. The naked inmates had to stand barefoot on a floor dirty with menstrual blood and raise their breasts, lift their hair, turn around, bend over, spread their buttocks and vaginas, and cough. The district court awarded summary judgment to defendants on the 42 U.S.C. 1983 Fourth Amendment theory, because Seventh Circuit precedent holds that a visual inspection of a convicted prisoner is not subject to analysis under that amendment. The jury returned a defense verdict on the Eighth Amendment claim. Because analysis under the Fourth Amendment is objective, while a successful claim under the Eighth Amendment depends on proof of a culpable mental state, the plaintiffs argued on appeal that they could succeed on a Fourth Amendment theory despite the jury’s verdict. The Seventh Circuit affirmed, reasserting that the Fourth Amendment does not apply to visual inspections of prisoners. Their convictions allow wardens to control and monitor prisoners’ lives, extinguishing the rights of secrecy and seclusion. View "Henry v. Reynolds" on Justia Law

by
After a hearing under 18 U.S.C. 3184, a magistrate certified Venckiene as extraditable to Lithuania for the prosecution of alleged offenses arising from a custody battle over Venckiene’s niece. The Secretary of State granted the extradition. Venckiene obtained a temporary stay and sought habeas corpus relief, claiming that the magistrate failed to apply the political offense exception in the extradition treaty and erred in finding probable cause that she was guilty of the offenses. Venckiene and others alleged political and judicial corruption in connection with her niece’s allegations of sexual abuse and claimed that the allegations evolved into protests that culminated in the formation of a new political party and the suspicious deaths of four people, including Venckiene's brother. Venckiene claimed that extradition violated her due process rights and that she might be subject to “particularly atrocious procedures or punishments” in Lithuania. The Seventh Circuit affirmed. While there is a political dimension to Venckiene's actions, they do not qualify as relative political offenses, which require a finding of “violent political disturbance or uprising.” Venckiene’s actions were not objectively those of someone furthering a political agenda; a video and transcript support the charges that Venckiene attempted to prevent law enforcement from entering her home and seizing her niece to execute a court order. Without specific evidence of atrocious conditions that Venckiene is likely to experience if extradited, blocking this extradition after the executive has approved it would go beyond the role of the court in the extradition process. View "Venckiene v. United States" on Justia Law

by
Green Bay police arrested Desotell while investigating a retail theft. He admitted to owning two bags containing methamphetamine and a handgun, which police discovered while searching a vehicle that had been involved in the theft earlier that day. Desotell was not a suspect in the theft but was charged with conspiracy to distribute and to possess with intent to distribute 500 grams or more of methamphetamine, and knowingly using or carrying a firearm during and in relation to a drug trafficking crime. Desotell agreed to plead guilty but later moved to suppress the evidence. While the motion was pending, the government indicated that he had to sign the plea agreement by March 9, 2018. Thinking that signing the agreement would mean withdrawing the motion, Desotell delayed. The government prepared for trial. Desotell unsuccessfully moved to enforce the unsigned plea agreement. Desotell then signed a plea agreement and the government withdrew the information. The district court confirmed that the agreement was a general plea, not a conditional plea and contained “no reservations of any right to appeal.” Desotell, through counsel, agreed but emphasized that he did not believe the waiver was effective because, at the time Desotell initially agreed to the wording, he had not contemplated filing his motion to suppress. The district court stated repeatedly that a defendant must expressly reserve his right to appeal. The court accepted the plea and sentenced Desotell to 180 months in prison—the mandatory minimum. The Seventh Circuit dismissed, based on the appeal waiver. View "United States v. Desotell" on Justia Law

by
Smith pleaded guilty to receipt of child pornography and was sentenced to 90 months of imprisonment and 20 years of supervised release, which began in November 2017. In August 2018, Smith’s probation officer, filed a petition, stating that Smith failed to participate in sex offender treatment, failed to participate in mental health treatment, failed to comply with location monitoring, and failed to make scheduled payments of fines. The advisory Sentencing Guidelines imprisonment range was three-to-nine months with a maximum of two years. The government sought a sentence of one year and one day due to Smith’s dishonesty and refusal to cooperate. The court referenced Smith’s manipulative behavior, lies, and refusal to participate in treatment or follow the court’s orders and discussed the seriousness of the child pornography offense, Smith’s history, the need to protect the public, and the need to promote respect for the law. The court noted that “[t]his is an extraordinary case, extraordinary dissidence, extraordinary deliberate efforts to violate the Court’s order, extraordinary in [Smith’s] effort to avoid treatment.” The court gave Smith a 24‐month sentence, with no supervised release to follow. The Seventh Circuit affirmed. The court gave a sufficient explanation of the factors it considered in determining the appropriate sentence and the sentence is supported by compelling justifications. Smith was manipulative, dishonest, breached the court's trust, disregarded the rule of law, and proved unwilling to seek the treatment the original sentencing court found necessary. View "United States v. Smith" on Justia Law

by
In 2004, Conroy was charged with solicitation of murder, solicitation of murder for hire, and attempted first‐degree murder. The court determined that Conroy was fit to stand trial. In 2007, Conroy pleaded guilty and was sentenced to 30 years in prison. He did not appeal. Conroy received mental health services through the Illinois Department of Corrections and, in 2007, was diagnosed with depressive and schizoaffective disorders. In 2008, Conroy’s evaluations indicated that he was “alert and oriented,” and his “[t]hought processes were logical, coherent and goal-directed.” Conroy “denied any auditory [or] visual hallucinations or delusions.” In 2009, Conroy filed an unsuccessful state court post-conviction petition, arguing that his counsel provided ineffective assistance by coercing him into pleading guilty. In 2014, Conroy filed other unsuccessful state court post-conviction motions. In 2016, Conroy filed a federal court petition under 28 U.S.C. 2254, alleging ineffective assistance. Conroy argued that the limitations period for filing his petition should be equitably tolled because his mental limitations prevented him from understanding his legal rights. The district court determined that Conroy’s mental limitations were not an extraordinary circumstance and that he failed to show that he had been reasonably diligent in pursuing his claim. The Seventh Circuit affirmed, noting evidence of Conroy’s competency in prior years. Conroy did not meet the “high bar” for equitable tolling. View "Conroy v. Thompson" on Justia Law

by
Fincher lived in a one‐bedroom apartment with his uncle, a drug dealer, and began selling drugs. Both were arrested after selling heroin to undercover police officers. Police searched the apartment. In the bedroom closet, they found more than 100 grams of heroin, cash, and .40 caliber bullets. A loaded .40 caliber handgun was found in the kitchen. Fincher, whose criminal record was clean, was charged with conspiring to knowingly and intentionally possess with intent to distribute 100 grams or more of heroin and six counts of distribution of and intent to distribute heroin. Fincher pleaded guilty to the conspiracy charge, which carried a mandatory minimum sentence of five years. The safety‐valve provision, 18 U.S.C. 3553(f), however, provides that a court is precluded from applying the mandatory minimum if it finds that the defendant has a minimal criminal history; the defendant did not use or threaten violence or possess a firearm in connection with the offense; the offense did not result in death or injury; the defendant was not an organizer or leader; and the defendant truthfully provided all information and evidence related to the offense before the sentencing hearing. Fincher’s DNA was found on the firearm. The district court found that Fincher possessed the firearm in connection with his offense, and was ineligible for safety‐valve relief and subject to a two‐level firearm enhancement, and imposed a five-year sentence. The Seventh Circuit affirmed. The safety‐valve potentially allows for relief from a mandatory minimum, but it does not increase or trigger it. Judicial fact-finding precluding safety‐valve relief does not violate the Sixth Amendment under the Supreme Court's Alleyne holding. Fincher failed to show by a preponderance of the evidence his possession of the handgun was not in connection with his offense. View "United States v. Fincher" on Justia Law