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Amendment does not affect reasonableness

By: dmc-admin//January 11, 2006//

Amendment does not affect reasonableness

By: dmc-admin//January 11, 2006//

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What the court held

Case: U.S. v. Vaughn, No. 05-1518.

Issue: Is a defendant’s sentence unreasonable where it is based on an amendment to the guidelines, and most of the defendant’s conduct occurred before the amendment?

Holding: No. The amended guidelines are the appropriate ones to use, and a refusal to issue a lower sentence is not per se unreasonable.

The Seventh Circuit held on Dec. 6 that a change in the sentencing guidelines does not render a sentence unreasonable, even though much of the defendant’s conduct occurred prior to the guideline amendment.

In early 2001, Gene B. Vaughn entered into a conspiracy to steal treasury checks. He pleaded guilty in September 2004 to two counts of conspiracy to defraud the United States.

On Nov. 1, 2001, amendments to the sentencing guidelines took effect, increasing the sentencing range for fraud. The effect was to nearly double the guideline sentence, although 90 percent of the money was stolen before that date.

Prior to sentencing, Vaughn moved for a downward departure on the grounds that most of the conduct took place before Nov. 1, 2001.
U.S. District Court Judge J.P. Stadt-mueller denied the motion, pursuant to United States v. Parolin, 239 F.3d 922 (7th Cir. 2001), which holds that trial judges are to apply the amended form of the guidelines even though the conduct may overlap two different sets of guidelines.

Vaughn also requested a sentence concurrent to a state sentence he was serving.

The 2001 Guidelines yielded sentences of 60 months’ imprisonment for Count I and between 97 and 121 months’ imprisonment for Count II. The court followed the Guidelines on Count I, and sentenced Mr. Vaughn to 112 months’ imprisonment on Count II, concurrent.

The court also directed that 24 months of the 112-month sentence run concurrently with three concurrent seven-year sentences for forgery imposed in state court. Finally, the court ordered restitution of $383,919.

Vaughn appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple.

Like the district court, the court concluded that Parolin requires that the 2001 version of the guidelines be applied, even though the conduct overlapped two different versions of the guidelines.

The court also affirmed the district court’s factual finding that Vaughn did not withdraw from the conspiracy prior to November 2001.

The court found, “he remained a member of the conspiracy and acted to further this conspiracy after the effective date of the 2001 Guidelines, as well. In 2002, he recruited another accomplice, his niece Tominka Vaughn. He continued to receive treasury checks through July 2002 from his co-conspirators. He opened the second checking account at Wells Fargo under a fictitious name in March 2002, into which he deposited $16,023 in stolen money. He opened a third account in June 2002, this time at Bank One, under a fictitious name; and he fraudulently endorsed and deposited $24,773.64 in stolen treasury checks into that account. In light of the plethora of evidence demonstrating that Mr. Vaughn’s criminal conduct straddled two versions of the Sentencing Guidelines, and the general practice of applying the version of the Guidelines in effect at the time of sentencing, we hold that the district court did not err in calculating Mr. Vaughn’s guideline range under the 2001 Guidelines.”

The court then discussed review of a district court’s refusal to grant a downward departure post-Booker. Pre-Booker, the court lacked jurisdiction to review that decision.

Post-Booker, the court concluded, “the concept of a discretionary departure — over which we previously had no jurisdiction — ‘has been rendered obsolete in the post-Booker world. Instead, “what is at stake is the reasonableness of the sentence, not the correctness of the departures as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.”’ citing United States v. Arnaout, 2005 WL 3242213, at *7 (7th Cir. 2005). Post-Booker, because we must review all sentences for reasonableness in light of the factors specified in sec. 3553(a), we necessarily must scrutinize, as part of that review, the district court’s refusal to depart from the advisory sentencing range.”

Related Links

7th Circuit Court of Appeals

Related Article

Case Analysis

Turning to the reasonableness analysis, the court concluded the sentence was reasonable, rejecting Vaughn’s argument that, because his involvement in the conspiracy began when the 2000 Guidelines were still in effect, the sentence imposed was unjust and unnecessary.

The court reasoned, “the district court, evaluating the facts of Mr. Vaughn’s case in light of the factors listed in sec. 3553(a), concluded that the sentencing range recommended by the 2001 Guide-lines better served the goals of retribution, punishment and dete
rrence than did the former sentencing regime. It held that, given Mr. Vaughn’s significant involvement in the conspiracy and his lengthy criminal history, he ‘ha[d] not [yet] learned the lessons from the error of [his] way[s].’ Therefore, reasoned the court, the advisory range of the 2000 Guidelines ‘understated the seriousness of the offense. Because the district court’s conclusions are supported by the record and ‘appropriately related to the factors specified in sec. 3553(a),’ we cannot find unreasonable the court’s decision not to depart from the 2001 sentencing range (cites omitted).”

Finally, the court rejected Vaughn’s argument that his sentence was unreasonable compared to those of co-conspirators who ceased their conduct a few months prior to November 2001 and received lower sentences as a result.

Citing U.S. v. White, 406 F.3d 827 (7th Cir. 2005), the court held that disparity among co-defendants’ sentences is not a valid basis to challenge an otherwise correctly calculated guideline sentence.

Click here for Case Analysis.

David Ziemer can be reached by email.

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