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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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