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09-1556 U.S. v. Jones

By: WISCONSIN LAW JOURNAL STAFF//March 15, 2011//

09-1556 U.S. v. Jones

By: WISCONSIN LAW JOURNAL STAFF//March 15, 2011//

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Sentencing
Relevant conduct

Unlawful conduct need not be chargeable in federal court in order for it to constitute relevant conduct under the Sentencing Guidelines.

“The fact that Jones’s possession of the rifle constituted a state rather than a federal crime does not preclude its treatment as relevant conduct. The Guidelines themselves do not define relevant conduct so as to categorically exclude state offenses. See § 1B1.3(a). Only when a state offense has already been punished by a state court might it be excluded from consideration as relevant conduct. See § 1B1.3, comment. (n.8). And courts have repeatedly approved the consideration of uncharged state offenses as relevant conduct in federal court. See United States v. McElroy, 587 F.3d 73, 88-89 (1st Cir. 2009) (Ripple, J., sitting by designation) (unpaid state taxes); United States v. Maken, 510 F.3d 654, 657-60 (6th Cir. 2007) (unpaid state taxes); United States v. Baucom, 486 F.3d 822, 829 (4th Cir. 2007) (unpaid state taxes), vacated on other grounds by Davis v. United States, 552 U.S. 1092, 128 S. Ct. 870 (2008); United States v. Martin, 157 F.3d 46, 51-52 (2d Cir. 1998) (possession of property stolen from local businesses and which had not yet been transported in interstate commerce); United States v. Powell, 124 F.3d 655, 664-66 (5th Cir. 1997) (unpaid state taxes); United States v. Dickler, 64 F.3d 818, 830-31 (3d Cir. 1995) (fraudulent bids on repossessed vehicles which were submitted to banks prior to effective date of federal statute under which defendants were charged, subject to condition that government could identify some other federal or state statute rendering such bids illegal); United States v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991) (falsified petty cash vouchers which may have only violated state law in absence of evidence they affected contracts with U.S. government); see also United States v. Barringer, 248 Fed. Appx. 754, 755 (7th Cir. 2007) (nonprecedential decision) (concluding it would be frivolous for counsel to argue that district court erred in considering as relevant conduct uncharged vandalism of private vehicles, which could only have been charged as a state crime; ‘nothing in the sentencing guidelines precludes the court from considering an uncharged state offense as relevant conduct’); United States v. Johnson, 324 F.3d 875 (7th Cir. 2003) (rejecting defendant’s contention that his state narcotics-conspiracy conviction should have been considered as relevant conduct rather than part of his criminal history, reasoning that it was not sufficiently related to defendant’s federal charge of distributing crack cocaine given the differences in time, narcotics involved, and modus operandi, but drawing no distinction between state and federal crimes in reaching this conclusion); United States v. Schilling, 142 F.3d 388, 394 (7th Cir. 1998) (noting without discussion that defendant was sentenced on basis of unpaid state as well as federal taxes). As the Second Circuit summarized in Martin, ‘[A] federal district court may consider any relevant conduct when sentencing a defendant, whether or not the conduct is a federal crime. In the context of U.S.S.G. § 1B1.3(a), jurisdictional considerations are not relevant to a defendant’s criminal responsibility.’ 157 F.3d at 51 (citations omitted). Thus, the lack of evidence that the .22-caliber rifle ever crossed state or international boundaries is irrelevant; Jones’s possession of the rifle need not have been within the power of the federal government to prosecute in order for it to be considered relevant conduct.”

Affirmed.

09-1556 U.S. v. Jones

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Rovner, J.

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