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7th Circuit upholds precedent but asks for further guidance from U.S. Sentencing Commission

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Although a gun buyer had his sentence affirmed, his argument for reduced time has caused the 7th Circuit Court of Appeals to call upon the Sentencing Commission to clarify a section of the U.S. Sentencing Guidelines.

The case, United States of America v. Tristan Davis, 12-3552, was appealed from the Northern District of Indiana, Hammond Division.

Davis pleaded guilty to two counts of lying to gun dealers and was sentenced to 18 months imprisonment. His offense level, and possibly his sentence, would have been lower if the District judge had given him a three-level reduction for accepting responsibility by pleading guilty. However, the prosecutor declined to move for the subtraction of a third level under U.S.S.G. 3E1.1(b) because Davis refused to waive his right to appeal.  

Davis contended that a motion from the prosecutor is mandatory whenever the defendant pleads guilty early enough and spares the prosecutor the burden of trial preparation.

In United States v. Deberry, 576 F.3d 708 (7th Cir. 2009), the court rejected that 3E1.1(b) requires a prosecutor to file a motion, noting the statute confers an entitlement on the prosecutor, not on the defendant.

Chief Judge Frank Easterbrook, in his opinion for Davis, noted the courts of appeals are divided on this issue. While a majority has reached the same conclusion as Deberry, two have sided with Davis’s contention that a court may direct the prosecutor to file a motion even if the prosecutor’s reason for withholding that motion does not violate the Constitution.

“This circuit could not eliminate the conflict by changing sides, so stare decisis supports standing pat,” Easterbrook wrote. “Resolution of this conflict is the province of the Supreme Court or the Sentencing Commission.”

Judge Ilana Diamond Rovner wrote a concurring opinion, also calling upon the Sentencing Commission to give further guidance.

However, she explained she does not believe that section 3E1.1(b) permits the government to insist that a defendant waive his appellate rights before it will ask the court to grant him an addition one-level decrease in his offense level for acceptance of responsibility.

Rovner noted sentencing judges can err when imposing sentences and these errors are rarely attributable to the defendant. Consequently, the defendant has a right to be sentenced accurately and fairly. Nothing in section 3E1.1(b), she continued, requires the defendant to accept responsibility for the court’s errors as well as his own.

 

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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