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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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