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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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