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Failure Case Analysis

There is more than a little irony in the court’s opinion.

In its analysis of Elliott’s conviction, the court disavowed a statement from an earlier opinion as dicta, and wrote, “That judicial comments lacking the benefit of an adversarial presentation are more likely to be uninformed is a principal reason why dicta are not binding.” The court further noted that the dicta at issue was not supported by any citation to any authority.

However, after deciding the only issues raised on appeal — whether the statute of limitations barred the prosecution, and whether the guideline range was properly calculated — the court proceeded, without any citation to authority, to issue confusing dicta wholly unnecessary to the disposition of the case.

The court’s conclusion — that the longer a defendant is on the lam, the longer his sentence should be — is contrary to the structure of the guidelines.

The more controlled substances one sells, the longer the sentence; the more money one steals, the longer the sentence; the more guns a felon possesses, the longer the sentence. Clearly, if the drafters of the guidelines intended that sentences go up the longer a defendant is a fugitive, it would have provided so in the guidelines.

The court’s discussion is also unclear as to whether it is mandatory or permissive for a district court to apply the court’s “present value” formula to absconders who are on the lam for an extended period of time after escaping or failing to report for a sentence.

In several instances, the court suggests that a court must impose an above-guideline sentence if an absconder is on the lam for a long time.

The court wrote, “How long the fugitive remains on the lam is vital to assessing the deterrent effect of a sentence, so 18 U.S.C. 3553(a)(2)(B) … requires the district court to give this subject close attention (emphases added).”

Later, the court wrote, “Time served in future years must be discounted to present value (emphasis added).”

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Still later, the court opined, “the law’s deterrent and retributive effect can be maintained, in the event of prolonged fugitive status, only by substantial incremental penalties (emphasis added).”

However, the court’s penultimate paragraph suggests that it is discretionary: “the district judge, not the appellate tribunal, is principally responsible for selecting a reasonable sentence. … More discretion can produce higher sentences as well as lower ones. Whether this is one of the case in which the sentence should rise is for the district court in the first instance.”

None of the court’s earlier statements — spoken in mandatory language — can be reconciled with the court’s final observation that the district court has discretion to decide whether this case warrants an above-guideline sentence or not.

So a lower court faced with a fugitive from justice has three options as to how to treat the court’s discussion of the present value discount: mandatory; discretionary; or as the court called its own previous statements in U.S. v. Knorr, 942 F.2d 1217 (7th Cir. 1991), “uninformed dicta.”

– David Ziemer

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David Ziemer can be reached by email.

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