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Court Error – Sentencing

By: Derek Hawkins//June 24, 2019//

Court Error – Sentencing

By: Derek Hawkins//June 24, 2019//

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7th Circuit Court of Appeals

Case Name: United States of America v. Devan Pierson

Case No.: 18-1112

Officials: KANNE, SYKES, and HAMILTON, Circuit Judges.

Focus: Court Error – Sentencing

A jury found appellant Devan Pierson guilty of possessing drugs with intent to distribute and two related firearm crimes. Because of Pierson’s prior criminal record, his mandatory sentence was life in prison. He raises three issues on appeal. The first, raised for the first time on appeal, is whether events at his trial added up to a constructive amendment of the two firearm charges in his indictment, which charged him with possession of one particular gun. Under our precedent in United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991), we conclude that an error occurred. It was not, however, a “plain error” that warrants reversal, and it did not affect Pierson’s substantial rights. Second, Pierson argues that the court erred under Apprendi v. New Jersey, 530 U.S. 466 (2000), by imposing the mandatory life sentence without having the jury find that he had two prior felony drug convictions. This argument is foreclosed by controlling Supreme Court precedent. See Almendarez‐Torres v. United States, 523 U.S. 224 (1998). Third, he seeks the benefit of the First Step Act, which was enacted while Pierson’s appeal was pending and which lowered the mandatory minimum sentence. The Act does not apply to Pierson, whose sentence was imposed before the Act took effect. We affirm Pierson’s convictions and sentence.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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