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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

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  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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