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Judges uphold man’s 151-month sentence

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A judge on the 7th Circuit Court of Appeals believed a defendant was entitled to resentencing because the District judge could only view him through “career-offender tinted glasses” even though the career offender distinction did not ultimately apply to him.

Bernard Hawkins appealed the denial of his motion under 28 U.S.C. Section 2255 to set aside his sentence because there’s a question of whether an error in calculating the applicable guideline sentencing range can be correct in a post-conviction proceeding since the guidelines are advisory rather than mandatory. In 2003, he assaulted two U.S. Marshals trying to arrest him for failure to attend a court hearing while on supervised release.

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, 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.

The 7th Circuit ordered Hawkins resentenced after United States v. Booker, 543 U.S. 220 (2005), which declared the guidelines as advisory instead of mandatory. Moody gave him the same 151-month sentence. Three years later, the U.S. Supreme Court held in United States v. Chambers, 555 U.S. 122, 127-30 (2009), that a "walkaway" escape conviction isn't a violent felony under the Armed Career Criminal Act. That ruling led to this appeal.

The majority found this case distinguishable from Navarez v. United States, 674 F.3d 621, (7th Cir. 2011) a very similar case in with Navarez was entitled to sentence relief on his post-conviction motion, because Navarez had been sentenced when the guidelines were mandatory and Hawkins was resentenced under the advisory guidelines.

“If we ordered resentencing, the judge could reimpose the identical sentence. The defendant’s criminal record would justify the judge’s doing that,” Judge Richard Posner wrote for the majority in Bernard Hawkins v. United States of America, 11-1245.  

Judge Ilana Diamond Rovner dissented, finding the court’s rationale for reaching the opposite conclusion in this case as compared to Navarez as “illusory.” Like Navarez, Hawkins was seen as a career offender before Moody on resentencing, even if the law didn’t impose that label on him anymore.

“… I would reverse … and remand to the District Court to allow Mr. Hawkins to stand before it without the errantly imposed black mark of a career offender,” she wrote.

 

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  1. 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?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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