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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. 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!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  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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