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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues