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Indiana ‘miscarriage of justice’ splits 7th Circuit judges 5-4

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A majority of nine 7th Circuit Court of Appeals judges narrowly denied rehearing en banc for an Indiana man whose sentence was erroneously calculated. A dissenting judge called the case a “miscarriage of justice.”
 
The petition for a rehearing en banc in Bernard Hawkins v. United States of America, 11-1245, divided circuit judges 5-4. Chief Judge Frank Easterbrook and Circuit Judges Michael Kanne, Richard Posner, Diane Sykes and John Tinder denied rehearing, while Judges David Hamilton, Ilana Rovner, Ann Claire Williams and Diane Wood dissented. Judge Joel Flaum took no part in the case, Bernard Hawkins v. United States of America, 11-1245.

Earlier this year, Hawkins was denied resentencing in a post-conviction relief proceeding on a conviction enhanced as a career offender, even though that distinction didn’t apply to him. At the time of his sentencing, he was considered a career offender because he had two “walkaway” escape convictions. He was sentenced to 151 months by Judge James Moody of the U.S. District Court, Northern District of Indiana, the bottom of the guideline range. If he wasn’t considered a career offender, the guideline range for the assault would have been anywhere from 15 to 30 months.

Hawkins sought a rehearing en banc after the U.S. Supreme Court decision in Peugh v. United States, 133 S.Ct. 2707 (2013). Justices ruled 5-4 that the ex post facto clause prevents courts from sentencing a defendant based on guidelines promulgated after the commission of a crime if the newer guidelines would result in a sentencing range higher than those in place when a crime was committed.
 
 “The issue in this case differs from that in Peugh in several respects,” Posner wrote for the majority. “One is that Peugh involved constitutional error — a violation of the ex post facto clause. Our case involves no claim of constitutional error — no claim for example that Hawkins’s sentence exceeded the statutory maximum … There is just a claim that the sentencing judge miscalculated the advisory guidelines range and might have given a lower sentence had he not miscalculated it.

“Our panel opinion does not deny that the district judge had committed an error that would be corrigible on direct review. But we found the social interest in a belated correction of the error outweighed by the social interest in the finality of judicial decisions, including sentences,” Posner wrote.

“The panel dissent evinced no recognition of the importance of finality to an effective judicial system, or of the difficulty of balancing “fairness” (meaning what exactly?) against finality. … Finality is an institutional value and it is tempting to subordinate such a value to the equities of the individual case. But there are dangers, especially if so vague a term as ‘fairness’ is to be the touchstone.”

But Rovner, in dissent, said the case was less about fairness than about the court saving face.

“Bernard Hawkins has been sitting in a Federal Correctional Institution, where he is scheduled to remain for approximately twelve-and-a-half years. It is uncontroverted that the district court erred when it calculated his sentence using the career offender enhancement, and had the court not erred, his calculated sentencing range would have been approximately ten times less — somewhere in the range of 15-21 months. Yet despite the known and conceded error, we are told that for the sake of principles of finality, Hawkins must remain in prison for the entire 151-month sentence,” Rovner wrote.

“In light of (Peugh), and for the reasons articulated in the dissent to the panel opinion, I believe it is our duty to reconsider Mr. Hawkins’ case.

"The district court erred in finding that Hawkins was a career criminal. Such an error constitutes a miscarriage of justice that can be remedied via petition for relief under § 2255, and, regardless of their advisory nature, the Sentencing Guidelines are influential enough that errors in their calculation cause harm. The Supreme Court’s reasoning in Peugh — which is consistent with the tenets of fairness that are the quintessence of our system of justice — calls for us to rehear this case,” Rovner wrote.
 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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