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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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