ILNews

Judges uphold man’s 151-month sentence

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT