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7th Circuit affirms above-guidelines sentence for embezzlement

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A man’s 60-month sentence for stealing from his employer for many years – a sentence beyond the advisory guidelines range – is reasonable, the 7th Circuit Court of Appeals ruled Friday. The man challenged the District Court’s recalculation of his guidelines range after he appealed his sentence.

In United States of America v. Richard Brown, 12-3313, Chief Judge Richard Young in the Southern District of Indiana, after considering the sentencing factors listed in 18 U.S.C. Section 3553(a), decided to sentence Richard Brown above the guidelines of 21 to 27 months based on the extensive nature of his crimes. Brown worked as the office manager and accountant for a cluster of small businesses owned by the Walker family when it was discovered in 2009 that he had been embezzling from the company for years, putting the businesses in financial straights and destroying the Walker family’s credit.

Brown was indicted on more than 150 counts of wire fraud, mail fraud and tax fraud. He pleaded guilty to a single count of each.

Brown appealed four days after sentencing. Three weeks later, Young issued an amended judgment and attached statement of reasons explaining the sentence. In that statement, Young recalculated Brown’s guidelines range, but kept the original sentence.

Brown claimed the District Court violated Rule 32(h) by not giving notice before applying “departures” to recalculate the guidelines range. The 7th Circuit affirmed.

“Accordingly, if there was error below, it was not the district court’s failure to give notice under Rule 32(h), it was the court’s effort to recalculate Brown’s guidelines range after the notice of appeal was filed. At the sentencing hearing, the district court correctly calculated the guidelines range and then varied upwardly based on the § 3553(a) factors, explaining why the sentence was appropriate. The court’s post-appeal statement of reasons needlessly introduced complication,” Judge Diane Sykes wrote.

She pointed out the real issue with the court’s recalculation is that it lacked the power to amend because the case is now before the 7th Circuit on appeal.
 
“Even if we construed the recalculated range as a nonsubstantive change in the rationale for the sentence — after all, the 60-month sentence was unaffected — the judge’s written explanation is plainly at odds with his oral statement from the bench. In cases of conflict between the written and oral pronouncement of sentence, the oral pronouncement controls,” the court held.
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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