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7th Circuit affirms possible erroneous sentence

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Because a defendant's attorney affirmatively waived any challenge to an Armed Career Criminal Act enhancement - despite the 7th Circuit Court of Appeals advisement that the enhancement may have been an error due to a recent Circuit ruling - the federal Circuit Court had no choice but to affirm the District Court.

In United States of America v. Darryl Foster, No. 08-1914, Darryl Foster appealed his 188-month sentence following a guilty plea to unlawful possession of a firearm. The District Court enhanced his sentence under the ACCA because it found he had three prior violent felony convictions, and because he used his gun in connection with the commission of a violent crime, constituting criminal recklessness.

But that finding may have been an error based on the 2008 ruling in United States v. Smith, 544 F.3d 7481, 786 (7th Cir. 2008), in which the Circuit Court held that criminal recklessness isn't a crime of violence under the ACCA. The ruling was decided after briefs were submitted in the instant case. During oral argument, Foster's counsel explicitly declined the Circuit Court's invitation to consider the appropriateness of Foster's ACCA enhancement in light of Smith, wrote Judge Richard D. Cudahy. His counsel responded that caselaw is clear that firing a handgun in and of itself under the circumstances of a case such as Foster's can be considered a crime of violence.

"We cannot make a party's arguments for him, or force him to make arguments he seems determined not to raise," wrote the judge. "Because Foster's counsel affirmatively waived any challenge to the ACCA enhancement, we cannot consider this issue here."

Foster was arrested in 2007 for firing his gun in the air during an altercation. He pleaded guilty, but at sentencing tried to change his story and said he didn't fire the gun. He argued on appeal there was insufficient evidence that he fired the gun he admitted to possessing. The Circuit Court found his challenge to be frivolous. Even Foster's attorney admitted at oral argument that the most spirited defense of his argument he could muster was that he "endeavored to definitely not bring a frivolous appeal."

Foster's arguments are without merit and the judges had no choice but to affirm the judgment of the District Court given that his attorney affirmatively waived the challenge to the ACCA.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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