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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. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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