ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Is this a social parallel to the Mosby prosecutions in Baltimore? Progressive ideology ever seeks Pilgrims to burn at the stake. (I should know.)

  2. The Conour embarrassment is an example of why it would be a good idea to NOT name public buildings or to erect monuments to "worthy" people until AFTER they have been dead three years, at least. And we also need to stop naming federal buildings and roads after a worthless politician whose only achievement was getting elected multiple times (like a certain Congressman after whom we renamed the largest post office in the state). Also, why have we renamed BOTH the Center Township government center AND the new bus terminal/bum hangout after Julia Carson?

  3. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  4. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  5. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

ADVERTISEMENT