Sentencing Felon in possession; marijuana trafficking A sentence served in the community is appropriate where the defendant’s criminal history category is overstated and he engaged in significant post-offense rehabilitation. “Defendant’s prior conviction for armed robbery distorted the guidelines’ recommendation. Ordinarily, ...

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Sentencing Drug trafficking Where the defendant did not know the amount of controlled substances involved in the one transaction he participated in, and did not profit from the transaction, a community sentence is appropriate. “The guidelines recommended 70-87 months, but ...

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Sentencing ACCA A federal sentencing court must determine whether “an offense under State law” is a “serious drug offense” by consulting the “maximum term of imprisonment” applicable to a defendant’s prior state drug offense at the time of the defendant’s ...

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Sentencing Allocution Maceo Downer appeals from a judgment of conviction, entered upon his guilty plea, and an order denying his postconviction motion for a new sentencing hearing. Downer contends that trial counsel was ineffective when she failed to advise him ...

Tagged with: Criminal Digest Sentencing Sentencing Digest WI Court of Appeals Digest

Sentencing Career offender enhancement; retroactivity A defendant unlawfully sentenced as a career offender can collaterally attack the sentence. “The fact that Mr. Narvaez’s sentence falls below the applicable statutory-maximum sentence is not alone determinative of whether a miscarriage of justice ...

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Sentencing Crack cocaine; due process The 100:1 crack to powder cocaine ratio does not violate due process. “[T]he Sentencing Commission reports also contain findings indicating that crack is at least somewhat more dangerous than powder cocaine. For example, in 2002, ...

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Sentencing Discretion Mark Steven Marker appeals the judgment entered on his guilty plea to first-degree recklessly endangering safety, see Wis. Stat. § 941.30(1), and the order denying his motion for postconviction relief. Marker claims that the circuit court erroneously exercised ...

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Sentencing Discretion; DNA surcharge Kenneth Neal, Jr., appeals from a judgment of conviction entered upon his guilty pleas to two felonies. He also appeals from an order denying his motion for postconviction relief. The issues are whether the circuit court: ...

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Sentencing Resentencing; new factors Heather Lee Bender moved for resentencing citing as a new factor the inability of Taycheedah Correctional Institution (TCI) to provide her with appropriate mental health treatment. We agree with Bender that mental health treatment at TCI ...

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Sentencing Restitution Guenther Huebner appeals from an order denying his motion for reconsideration of the $130,000 in restitution he was ordered to pay Wisconsin Gas Company, LLC, d/b/a WE Energies. He asks that we set restitution at zero because (1) ...

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Sentencing DNA surcharge Romale A. Richardson appeals from a judgment of conviction, entered upon his guilty plea, and an order denying his postconviction motion. The sole issue on appeal is whether the circuit court erroneously exercised its discretion when it ...

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Sentencing Discretion Dustin Przybylski seeks resentencing on his conviction for operating a motor vehicle while under the influence of an intoxicant or other drug, fourth offense, contrary to Wis. Stat. § 346.63(1)(am). Przybylski claims that the circuit court did not ...

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Sentencing DNA surcharge Christopher D. Smith, pro se, appeals an order denying his motion to vacate a DNA surcharge imposed when he was sentenced in 2002. He contends the circuit court misused its discretion when it imposed the surcharge. We ...

Tagged with: DNA surcharge Sentencing Digest State v. Smith

Sentencing DNA surcharge Kofi A. Easterling, pro se, appeals orders denying his motions to vacate a DNA surcharge imposed when he was sentenced in 2002. He contends the circuit court misused its discretion when it imposed the surcharge. We affirm. ...

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Sentencing DNA surcharge David A. Saddy, pro se, appeals an order denying his motion to modify his sentence to remove the DNA surcharge imposed by the circuit court at the time of his original judgment of conviction in 2003. He ...

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Sentencing Restitution Where a defendant convicted of conspiracy to manufacture marijuana made unauthorized alterations to a rented home to operate a hydroponic growing operation, he can be ordered to pay restitution for damages to the home. “The cases Hoseman relies ...

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Sentencing Modification; new factors Frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor. “The requirements for sentence modification are ...

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Sentencing Family responsibilities A downward departure pursuant to U.S.S.G. 5H1.6 can only be based on current, not past, caregiving responsibilities. “Runyan’s caregiving claim here was so thin as not to require comment. He emphasizes the extent of his own sacrifice, ...

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Sentencing Discretion Where the sentencing court did not address any mitigation factors offered by the defendant, the sentence is vacated. “We have recognized that the need for explanation typically is diminished when a sentence falls within the guidelines range, United ...

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Sentencing Sophisticated means enhancement Where a fraud lasted for seven years, the court properly enhanced the sentence for using sophisticated means to perpetrate the scheme. “Landwer’s conduct, however, falls within our interpretation of sophisticated means. Application of the adjustment ‘is ...

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Sentencing Separation of powers It did not violate the separation of powers doctrine for a sentencing court to educate himself about the crime and prepare a memorandum about it, where the court gave the parties the opportunity to respond to ...

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Sentencing Guideline range When imposing a sentence outside of the applicable guideline range, the district court should explain the reason with reference to the sec. 3553(a) factors, not by reference to a guideline range the court thinks more appropriately reflects ...

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Sentencing Crack cocaine That the government did not oppose a co-defendant’s motion for sentence reduction under 18 U.S.C. 3582(c)(2) does not entitle the defendant to a reduction. “As for the issue of a codefendant’s successful § 3582(c)(2) motion, the distinction ...

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Sentencing Identity theft A 108-month sentence for 22 counts of identity theft is not unreasonable. “The defendant asserts that the district court failed to consider his mitigating factors, including: his childhood trauma, cooperation with the authorities, his stroke and the ...

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Sentencing Modification Devis S. Osinski appeals from a judgment of conviction and an order denying his motion for sentence modification. Osinski argues to this court that he is entitled to be resentenced because (1) the court did not properly explain ...

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United States Court of Appeals Sentencing Obstruction of justice Where a defendant’s trial testimony went beyond general denial of his involvement, his sentence was properly enhanced for obstruction of justice. “In this case, the district court found that Taylor’s testimony ...

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Sentencing Reasonableness Where the district court did not find that a life sentence was sufficient, but not greater than necessary, to comply with sec. 3553(a)(2), the sentence must be vacated. “The essence of Kimbrough is to permit district courts to ...

Tagged with: Johnson reasonableness Sentencing Digest U.S. United States Court of Appeals

Sentencing Guidelines Where the sentencing court made no reference to the guideline range at all, the sentence must be vacated. “Although the district court need not explain why a sentence differs from the Sentencing Commission’s recommendation as long as the ...

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Sentencing Position of trust enhancement Where a mortgage broker only defrauded lenders, not borrowers, the sentencing court should not have enhanced the sentence under U.S.S.G. 3B1.3 for abusing a position of trust. “During the sentencing proceeding, the government did not ...

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Sentencing Modification Gene Blackmore appeals from a judgment of conviction entered upon his guilty pleas to two felonies as a party to the crimes: (1) conspiracy to commit armed robbery by use of force, and (2) false imprisonment. He also ...

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