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Man argues the sentencing guidelines were applied incorrectly

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A Wisconsin man who used a stolen Indiana driver’s license to obtain a passport had his sentence affirmed by the 7th Circuit Court of Appeals which held certain provisions in the sentencing guidelines should be applied differently depending on the circumstances.

Fairly W. Earls was found guilty in July 2011 of making a false statement on a passport application, aggravated identity theft and knowingly transferring a stolen identification document. The U.S. District Court in the Northern District of Indiana, Hammond Division sentenced him to 36 months on counts one and three with a consecutive sentence of 24 months on count two.   

Earls appealed his sentence, in part, on the grounds that the District Court erroneously calculated his sentencing guideline range. In United States of America v. Fairly W. Earls, 11-3347, the 7th Circuit Court of Appeals affirmed.  

Based on Earls’ three-count conviction, the Presentence Investigation Report (PSR) recommended that his total offense level be set at 15. The report concluded that because Earls had used a passport in the commission of a felony, namely bail jumping, the court should apply 2L2.2(c)(1)(A), which calls for the application of 2X1.1 (Attempt, Solicitation or Conspiracy).

In turn, 2X1.1 of the sentencing guidelines then directs the court to apply the base level from the guidelines for the substantive offense and add any adjustments for intended conduct that can be established with reasonable certainty. The District Court concluded that Earls’ offense of using his passport to jump bail most closely correlated to Sentencing Guidelines 2J1.6 (Failure to Appear by Defendant). When applied, 2J1.6 brought the offense level to 15.

Earls argued that the cross-reference was done in error because of the language in Application Note 2 of 2X1.1, which defines “substantive offense” to mean that the defendant was convicted of soliciting, attempting or conspiring to commit. He contended the District Court erred when it applied 2X1.1 because at the time he was sentenced, he had not been convicted for failure to appear in Wisconsin state court.

The 7th Circuit ruled the commentary in Application Note 2 does not apply when 2X1.1 is reached by cross-reference from 2L2.2(c)(1)(A) because it is rare that a defendant will have already been convicted of “soliciting, attempt, or conspiring to commit” an underlying offense at the time of sentencing. The court concluded that Application Note 2 was “logically intended” to be applied when 2X1.1 is applied directly, not when it is reached through cross-reference from 2L2.2(c)(1)(A).
 

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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