Articles Posted in US Court of Appeals for the Seventh Circuit

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Hudson pleaded guilty to possession of a firearm by a convicted felon. The Seventh Circuit corrected two conditions of supervised release, holding that resentencing was not required. Hudson's presentence investigation report included several potential conditions of supervised release, with radio buttons recommending conditions: “you shall refrain from any or excessive use of alcohol (defined as having a blood alcohol concentration greater than 0.08%).” Hudson’s attorney did not object. The corresponding condition in the subsequent written judgment differed from the PSR, failing to check the definitional box. A condition prohibiting “excessive” alcohol use, without definition, is impermissibly vague. The Seventh Circuit described the situation as “an obvious scrivener’s error” because nothing indicated the judge intended to deviate from that definition. The district court also stated, “Once Mr. Hudson is released from custody, he will be directed to remain within the jurisdiction in which he is being supervised, unless he is granted permission to leave.” Hudson’s attorney requested the condition include Indiana, where Hudson’s wife lives. The court agreed, but the written judgment simply states, “you shall remain within the jurisdiction where you are being supervised unless granted permission to leave.” The Seventh Circuit stated that the better term to use in this condition is “judicial district,” rather than “jurisdiction” and that the failure to include the district in which Hudson’s wife resides was another obvious technical oversight. An oral sentence controls over a written one whenever the two conflict. View "United States v. Hudson" on Justia Law

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Bolin was charged with possession of sexually explicit material involving minors, 18 U.S.C. 2252(a)(4)(B), 2252(b)(2). The court approved Bolin's financial affidavit and appointed him counsel. Bolin pleaded guilty. His plea agreement included a “Waiver of Right to Appeal,” with a paragraph stating: The defendant understands that the defendant has a statutory right to appeal the conviction and sentence imposed and the manner in which the sentence was determined. Acknowledging this right, and in exchange for the concessions made by the Government in this Plea Agreement, the defendant expressly waives the defendant’s right to appeal the conviction imposed in this case on any ground, including the right to appeal conferred by 18 U.S.C. 3742.… This blanket waiver of appeal specifically includes all provisions of the guilty plea and sentence imposed, including the length and conditions [of] supervised release and the amount of any fine. The court determined that Bolin was competent and capable of entering into an informed plea. The PSR explained that Bolin faced fines but recommended that the court not impose any fine but impose $100 for the mandatory special assessment and $5,000 for the additional special assessment. It did not elaborate as to its reasoning. The court sentenced Bolin to 120 months of imprisonment plus 15 years of supervised release with the mandatory and additional special assessments (18 U.S.C. 3013, 3014). Bolin argued that he is indigent. The Seventh Circuit affirmed, finding Bolin has waived this claim. View "United States v. Bolin" on Justia Law

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Snapchat user “Snappyschrader” identified himself as a 31-year-old male and agreed to assist a 14-year-old female in purchasing undergarments. He was actually communicating with Altoona Detective Baumgarten. After agreeing to meet at a supermarket, officers identified “Snappyschrader,” actually, Brixen, arrested him, and seized his phone. To illustrate to Brixen that he had been communicating with an undercover detective, Baumgarten sent a message to Brixen’s phone from the undercover Snapchat account. Brixen witnessed the notification appear on his phone screen. Brixen moved to suppress this evidence arguing it constituted an unreasonable search of his cell phone. The Seventh Circuit affirmed the denial of the motion, noting that Brixen conceded that evidence recovered under a subsequent search warrant remains admissible because even after excision of the tainted evidence from the supporting affidavit, it still establishes probable cause. Upon arrest, Brixen no longer had a right to keep his phone in his pocket; once the phone was seized the notification projected on the screen was plain to see. Disabling notifications that automatically appear on the phone would have preserved the message as private but Brixen simply had no reasonable expectation of privacy in a conspicuous notification once his phone was seized. View "United States v. Brixen" on Justia Law

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Two armed men robbed three Indianapolis area check cashing stores while wearing 1970s-themed disguises. An anonymous tip led law enforcement to Jett and McKissick, and a third man, Walker, who officers believed was involved in planning a fourth robbery. The government charged all three men with conspiracy in violation of the Hobbs Act, 18 U.S.C. 1951(a). and attempted bank robbery, with respect to the planned fourth robbery. A jury convicted them on both counts. The Seventh Circuit reversed in part, finding error with respect to the sufficiency of the evidence on the attempted-robbery count but otherwise affirmed. Law enforcement arrested McKissick and Walker before they had an opportunity to approach the Credit Union they planned to rob, and Jett never neared the Credit Union that day. With respect to the conspiracy convictions, the judge’s decision not to instruct the jury on an overt-act requirement was proper. The government presented sufficient evidence to convict Walker of conspiracy. He was caught with a coconspirator circling a cash-and-check store, in a stolen car, with a duffle bag and ski mask in the car. When law enforcement attempted to pull Walker over, he evidenced guilt by leading them on a high-speed and dangerous chase. View "United States v. Jett" on Justia Law

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Young enlisted in the Army in 1977. During a 1978 training exercise, he suffered a back injury when his jeep crashed. Young later took part in a parachute training exercise. Years later, he claimed that he was traumatized when he witnessed a fellow soldier’s death in the jump. After his 1981 discharge, Young worked in various manufacturing positions. After denying having any medical or mental health conditions, Young enlisted in the Wisconsin Army National Guard. In 1990, Young first sought VA compensation for his back injuries; he later claimed Post‐Traumatic Stress Disorder. He was eventually found to be unemployable, was assigned a combined 100% compensation rate, and obtained additional compensation, to adapt his house to accommodate his allegedly increasing disability. Young pleaded guilty to wire fraud, 18 U.S.C. 1343, for defrauding the VA regarding the extent of his injuries. The district court sentenced Young to 21 months in prison, in the middle of the Sentencing Guideline range calculated based on the loss amount stipulated by the parties--$201,521.41. The Seventh Circuit affirmed. Young waived any objection to the loss amount. This was not merely a forfeiture—an inadvertent failure to raise an issue—but an intentional waiver that was part of a broad compromise of potentially disputed sentencing issues. View "United States v. Young" on Justia Law

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Madison, Wisconsin law enforcement investigated a ring distributing methylenedioxymethamphetamine, also called MDMA or Ecstasy, and other controlled substances. An undercover officer bought Ecstasy from Pennington twice in late 2015 and twice again in September 2016; in October 2016, the officer tried to purchase crack cocaine from Pennington, but she lacked direct access to that drug. Pennington pleaded guilty to distributing a Schedule I controlled substance, 21 U.S.C. 841(a)(1) and was sentenced to one year and one day in prison, within the Sentencing Guidelines range of 10-16 months. The Seventh Circuit affirmed. The district court’s comparison of Pennington to her co-defendant was not a procedural error. The comparison was reasonable and did not exclude consideration of other factors that 18 U.S.C. 3553(a) requires courts to consider. The court did not violate Pennington’s due process rights by relying on inaccurate information. Although the judge made a factual error in explaining the sentence orally, he corrected the error in the written explanation, indicating that the error did not affect the ultimate sentence. View "United States v. Pennington" on Justia Law

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DEA task force members lawfully found drugs in a traffic stop and seized several garage openers and keys they found in the car. An agent took the garage openers and drove around downtown Chicago pushing their buttons to look for a suspected stash house. He found the right building when the door of a shared garage opened. The agent then used a seized key fob and mailbox key to enter the building’s locked lobby and pinpoint the target condominium. Another agent sought and obtained the arrestee’s consent to search the target condo. The search turned up extensive evidence of drug trafficking. The Seventh Circuit affirmed the district court's denial of a motion to suppress the drug trafficking evidence. While the use of the garage door opener was a search and was "close to the edge," it did not violate the Fourth Amendment, which does not forbid this technique to identify the building or door associated with the opener, at least where the search discloses no further information. Use of the key fob and mailbox key in the lobby was not unlawful because the defendants had no right to exclude people from the lobby area. At all other stages of the investigation, the agents also complied with the Fourth Amendment. View "United States v. Correa" on Justia Law

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Downey attempted to rob the Waukegan Associated Bank by approaching a teller, pointing a cap gun at her, and demanding money. When the teller and a co-employee ducked behind the counter, he left the bank. The next day, he entered TCF Bank in Waukegan holding a cap gun. After observing the number of people in the bank and that a partition separated the customer area from the teller counter, he left the bank. TCF Bank contacted the police and he was arrested a short distance away following a brief foot chase. He subsequently pled guilty to attempted bank robbery, 18 U.S.C. 2113(a) and entry of a bank with intent to commit larceny. The Seventh Circuit affirmed his sentence of 57 months’ imprisonment plus three years of supervised release, with conditions. A discretionary condition did not authorize any drug tests that would exceed the maximum number of 104 tests provided in the mandatory condition. Downey did not dispute the reasonableness of 104 tests. A discretionary condition that allowed the probation officer to visit Downey at any location specified by the probation officer contains a limitation that the location and time be “reasonable,” which adequately resolves any concern with the probation officer’s discretion. View "United States v. Downey" on Justia Law

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Taylor and Thomas, abandoned by their fathers and raised in poverty by abusive mothers in Hammond, Indiana, sold drugs until 2000, when they admitted to friends that they had committed a robbery and that Taylor had “hit a lick.” The two had robbed a gun shop, killing the owner, a 73-year-old, near-deaf WWII veteran. The owner was shot twice, once in the neck and once in the face. Taylor and Thomas took firearms, which they later sold on the streets. They were convicted of Hobbs Act conspiracy, 18 U.S.C. 1951; Hobbs Act robbery; murder during a robbery, 18 U.S.C. 924(c), (j); and felony possession of a firearm, 18 U.S.C. 922(g)(1), 924(a)(2) and were sentenced to life in prison. The Seventh Circuit twice ordered evidentiary hearings and supplemental proceedings, then ordered a new trial, which again resulted in life sentences. The district judge resentenced the men, again to life imprisonment, in 2017. The Seventh Circuit affirmed, noting that the district judge fully considered their mitigation arguments, including that both men have below-average IQs. The sentences were consistent with the Guidelines and not substantively unreasonable. View "United States v. Thomas" on Justia Law

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Austin was charged, based on an eight‐year mortgage‐fraud scheme, with bank fraud, 18 U.S.C. 1344; wire fraud, section 1343; aggravated identity theft, section 1028A(a)(l); and obstruction of justice, section 1512(c)(2). Austin allegedly participated in 52 fraudulent mortgage loans, with losses of over $8 million. Nine co-defendants pleaded guilty. On the sixth day of his jury trial, Austin changed his plea. The court confirmed that it was “an oral blind plea” to three counts, confirmed Austin's understanding of the maximum penalties and fines, asked questions to determine Austin’s competence, and explained trial rights that Austin would be waiving. Austin admitted the factual basis for his plea and confirmed that he had spoken to his attorney about the Sentencing Guidelines. The court did not discuss forfeiture. The PSR indicated a Guidelines range of 188–235 months, with enhancements for the number of victims, role in the offense, obstruction of justice, and loss amount of over $8.6 million per the 2014 version of U.S.S.G. 2B1.1(b)(1)(K) although the 2015 manual that was then in effect. There was no adjustment for acceptance of responsibility. Austin did not object to the loss chart. The court imposed a sentence of 144 months, entered an order of forfeiture ($4,374,070), and ordered restitution. The Seventh Circuit affirmed acceptance of the plea but vacated the sentence. While Austin did not provide any evidence he would not have pleaded guilty had the court advised him concerning forfeiture, restitution was improperly calculated. View "United States v. Austin" on Justia Law