7th Circuit issues four Booker cases

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The Seventh Circuit issued four noteworthy Booker decisions last week, discussing criminal history, obstruction of justice, and, for the first time, finding that limited remand is unnecessary under plain error review, because it is clear that, even if the sentencing guidelines were not mandatory, the defendant’s sentence would only go higher, not lower.

Lewis

In the first case, issued April 19, Dewayne Lewis was convicted of being a felon in possession of a firearm, and was sentenced to 70 months. Because the district court treated his underlying conviction, robbery, as a crime of violence under U.S.S.G. 2K2.1(a)(4)(A), his offense level was increased.

In finding that robbery was a crime of violence, the court relied on affidavits of the victims, without considering the elements of the offense.

Lewis appealed, and the Seventh Circuit vacated the sentence, and remanded for resentencing under advisory guidelines.

The court found no Sixth Amendment violation, reasoning, "Criminal history is all about prior convictions; its ascertainment therefore is excluded by Booker’s own formulation and governed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).

The court added that, even if Almendarez-Torres were to be overruled, Lewis could not benefit because he took advantage of Old Chief v. U.S., 519 U.S. 172 (1997), preventing the jury from learning details about his prior conviction. The court reasoned, "A defendant cannot insist during trial that the jury be kept in ignorance, yet demand after its end that he receive a lower sentence because the jury did not pass on the very issue that had been withheld at his request."

Nevertheless, the court found that a non-constitutional error was made when the court looked to affidavits to determine what Lewis did to commit robbery, rather than the elements of robbery under Indiana state law, citing Shepard v. U.S. 125 S.Ct. 1254 (2005).

Cunningham

In the second case issued April 19, Thomas M. Cunningham was convicted, after a jury trial, of one count of producing child pornography and sentenced to 210 months.

His sentence was adjusted upwards for two reasons: the girl was under sixteen; and he used a computer to facilitate the crime. The court also departed upward, four offense levels, because of criminal acts not charged in the indictment — Cunningham’s molestation and abuse of the girl, involving at least six incidents of sexual contact.

The 210-month sentence was the highest available within the range that resulted after the two upward adjustments and the upward departure.

Applying plain error review, the Seventh Circuit affirmed Cunningham’s sentence.

Although Cunningham challenged the base level enhancements at the trial level, he did not preserve the challenges on appeal, confining his challenge to the four-level upward departure. At oral argument (held prior to the U.S. Supreme Court’s decision in U.S. v. Blakely), his attorney specifically stated that he did not contest the enhancements. The court held this an intentional waiver of the right to challenge them.

Turing to the only objection preserved — the upward departure based on uncharged conduct — the court concluded that this case fell into the narrow exception for which limited remand pursuant to U.S. v. Paladino, 401 F3d 471 (7th Cir. 2005), is unnecessary. In Paladino, the court held that, in rare instances, a Booker error does not require remand, on plain error review, "if the judge would have imposed the same sentence even if he had thought the guidelines [were] merely advisory."

Not only did the sentencing court depart upwards — a factor listed in U.S. v. Lee, 399 F.3d 864, 867 (7th Cir. 2005), as an instance in which it may be concluded that, if the judge knew the guidelines were advisory, he would impose a harsher, not more lenient, sentence — it also imposed the highest sentence allowed under the resulting guideline range, and noted that, were it not for Cunningham’s falling into Criminal History Category I, the sentence would have been even greater.

The Seventh Circuit concluded, "these statements provide confirmation that, if he was required to resentence Cunningham, the trial judge would undoubtedly reimpose the original sentence or even devise a longer period of confinement, but certainly would not fashion a lesser punishment. Under such circumstances, it cannot be said that Cunningham has been prejudiced."

The court then proceeded to review the sentence for "reasonableness," found the sentence reasonable, and affirmed.

Miller

In the third case, U.S. v. Miller, decided April 20, the defendant, Duane L. Miller, Jr., was convicted of one count of conspiracy to distribute Ecstasy, and one count of distribution. He was sentenced to 70 months, after the sentencing court rejected his argument that he should receive a two-level reduction for his allegedly minor role in the offense, and instead, added a two-level enhancement for obstruction of justice.

The court found by a preponderance of the evidence that Miller perjured himself when he testified at trial that he did not know there were Ecstasy pills in the bag he delivered to an undercover officer.

On appeal, the Seventh Circuit held that the district court erred at sentencing, when it concluded that it lacked authority to grant a reduction for minor role in the offense, because Miller was held accountable only for drugs directly attributable to him, citing U.S. v. Rodriguez-Cardenas, 362 F.3d 958 (7th Cir.2004).

The Seventh Circuit expressed doubt that Miller could qualify for a reduction on this ground in any event, but nevertheless, held the case must be remanded for resentencing, based on a proper understanding of the law.

Because the court was already remanding the case on other grounds, the court declined to consider whether it wa
s error for the judge to apply a two-level enhancement for obstruction of justice based on Miller’s perjury.

In a footnote, however, the court wrote, "to indicate our resolution of issues presented on the present appeal, however, we would note that the district court did not clearly err in finding that Miller perjured himself by testifying that he did not know that the bag he delivered to Detective Mahone contained Ecstasy, since it could have refused to credit Miller’s testimony in light of submissions. Moreover, both the offenses of conspiracy and distributing incorporate a scienter element that Miller’s testimony was intended to negate, and the jury’s verdict directly establishes that it disbelieved his testimony, since it was required to find scienter in order to convict Miller. Under Booker, therefore, it could certainly be argued that there was no constitutional error in applying the enhancement for obstruction of justice because the jury by its verdict established that perjury had been committed. Cf. United States v. Parra, No. 03-2056, 2005 WL 703936 (7th Cir. March 29, 2005)."

Skoczen

In the final case, also decided April 20, Ronald Skoczen was convicted of conspiring to posses goods stolen from an interstate shipment, and conspiring to transport stolen goods in interstate or foreign commerce, resulting from his plan to buy a truckload of stolen cigarettes (manufactured in Virginia and delivered to him in Illinois) at 20 cents a pack, and sell them overseas.

Skoczen was sentenced to 60 months for conspiracy to possess, and 8 months for conspiracy to transport, consecutive to each other.

Skoczen did not raise any Booker issues in the district court, but filed a supplemental brief after Blakely was decided. Skoczen challenged the district court’s calculation of the amount of loss on which his sentence was based, and an upward adjustment for being an organizer or leader. The Seventh Circuit found both of these adjustments supported by the evidence.

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Skoczen also challenged his criminal history category, because the district court found that a local ordinance violation was properly included in calculating his criminal history. The court found no error in that determination, either. Nevertheless, the court issued a limited remand pursuant to Paladino, for the court to determine if it would have imposed a different sentence under advisory guidelines.

Before doing so, however, the court discussed the criminal history objection as follows: "The Supreme Court has held that sentencing adjustments related to recidivism, in the context of applying statutory classifications, do not raise the same Sixth Amendment issues as other sentencing points. See Almendarez-Torres v. United States, 523 U.S. 224 (1998); but see Shepard v. United States, 544 U.S. __ (March 7, 2005)(slip op. at 2)(Thomas, J., concurring) ("Almendarez-Torres .. has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.’). Although the court had no occasion in Booker to focus on the calculation of criminal history under the guidelines, its remedial opinion in Booker did not distinguish between calculations related to offense level and calculations related to criminal history. Instead, it chose to strike down the underlying statutory provisions that made the guidelines mandatory, 18 U.S.C. secs. 3553(b)(1) and 3742(e), rejecting the government’s arguments for different intermediate solutions. This indicates to us that the assessment of criminal history for purposes of applying the Guidelines (as opposed to a statutory sentencing range) is also something that falls within the Booker rule."

Cases: U.S. v. Lewis, No. 03-4100; U.S. v. Cunningham, No. 03-3006; U.S. v. Miller, No. 04-1989; U.S. v. Skoczen, No. 1960.

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David Ziemer can be reached by email.