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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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