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Sentencing — collateral attacks

By: WISCONSIN LAW JOURNAL STAFF//May 29, 2012//

Sentencing — collateral attacks

By: WISCONSIN LAW JOURNAL STAFF//May 29, 2012//

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — collateral attacks

A court may not consider the validity of a prior conviction in calculating the appropriate guideline range, but may consider it in determining the appropriate sentence to impose.

“There is nothing illogical or unreasonable—nothing inconsistent with the broad and vague standard of section 3553(a)—about giving a defendant a below-guidelines sentence because his guidelines range had been elevated as the result of an erroneous conviction. Section 3553(a)(1) instances among the factors for a sentencing judge to consider the ‘history and characteristics of the defendant’ (emphasis added). Section 3661 states that ‘no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.’ In United States v. Sonnenberg, 628 F.3d 361, 368 (7th Cir. 2010), citing section 3661, we said that ‘nothing in the law would require the court, in exercising its judgment and discretion under § 3553(a), to close its eyes to the actual conduct that led to the prior conviction.’ Even more emphatically, we said in United States v. Miranda, 505 F.3d 785, 795 (7th Cir. 2007), that when the defendant ‘sought to enter evidence on the context of these two prior convictions, the district court repeatedly stated that it could not “revisit” or “look beyond” those convictions, apparently construing [his] argument as a collateral attack on the prior convictions. But [he] was not collaterally attacking those convictions; rather, he was asking the court to consider an argument under section 3553(a)(1) that those convictions arose out of his mental health issues and that his criminal history category overstated both the seriousness of his prior conduct and the likelihood that he would commit further crimes. The district court is free to accept or reject that theory based on the evidence before it, using the factors set forth in section 3553(a)(1) and, by way of analogy, sections 4A1.3(b) and 5K2.13 of the guidelines.’”

Affirmed.

11-3115 U.S. v. Ortega-Galvan

Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Posner, J.

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