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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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