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Sentencing — crime of violence

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

Sentencing — crime of violence

By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — crime of violence

Where the district court relied on post-sentencing conduct in holding that a defendant was improperly classified as a career offender at sentencing, the new sentence must be vacated.

“Coleman argues that this case is distinguishable from Hawkins because we need not guess as to whether the sentence would have been lower absent the career offender designation, given that at resentencing the district court sentenced him to only 120 months. That argument is problematic for a number of reasons. First, the resentencing in this case was by a different district court judge years after the original sentence, and the transcript indicates that the district court considered the defendant’s conduct in prison and his participation in prison programs as evidence militating towards a lower sentence. The district court on resentencing held that there was not anything mitigating in Coleman’s criminal history, and noted that although the forcible sexual assault was not a crime of violence for career offender designation, the details of the sexual assault in the criminal complaint were ‘disturbing’ and could be considered under § 3553(a). Coleman did not dispute the facts in the Presentence Report (PSR) before the district court concerning that offense, which indicated that the sexual assault was forcible and that the victim was 14 years old. There is, in short, no reason to believe that a district court—faced with a crime of such a nature—would be inclined to revise the sentence based solely on whether the elements of that offense necessarily fall within the career offender provision’s definition of a crime of violence. It is the type of crime that one would expect to fall within such a category and that is at a minimum analogous to such crimes, and a court would properly consider that in determining the appropriate sentence in light of the § 3553(a) factors. The mitigating factors identified at sentencing involving Coleman’s conduct in prison would not have been factors at the original sentence and therefore the lower sentence resulting from that consideration does not inform us as to whether the original sentence would have been lower.”

Reversed and Remanded.

12-2621 & 12-2762 U.S. v. Coleman

Appeal from the United States District Court for the Western District of Wisconsin, Conley, J., Rovner, J.

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