Tuesday, April 19, 2005
Ind. Decisions - 7th Circuit posts five today
USA v. Vitrano, Thomas P. (ED Wis.) [9 pp. - criminal]
USA v. Lewis, DeWayne (ND Ind., William C. Lee, Judge) [7 pp. - criminal]
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges
EASTERBROOK, Circuit Judge. A jury convicted Dewayne Lewis of possessing a firearm, despite a felony conviction that made it unlawful for him to carry a gun. * * *
Although it is tempting to treat the district judge’s use of the affidavits as a trifle—after all, robbery always is a “crime of violence”—the line between categorical and person-specific classification is important. Sentencing in a felon-inpossession case must not turn into a reprise of the earlier prosecution, for practical reasons as well as the constitutional considerations limned in Part III of Shepard. The district judge may well have used the affidavit’s allegations when deciding where in the range to sentence Lewis, which would misconceive the nature of a recidivist enhancement. What matters is the fact of conviction, rather than the facts behind the conviction. The United States does not argue that it would have been appropriate to use these affidavits to decide where in the range to sentence Lewis, if they were not appropriately used to classify his prior conviction. The conviction is affirmed. The sentence is vacated and the case remanded for resentencing consistent with this opinion. When resentencing Lewis, the judge will treat the guidelines as advisory, per Booker’s remedial holding, and impose a reasonable sentence.
USA v. Cunningham, Thomas (SD Ind., David F. Hamilton, Judge) [15 pp. - criminal]
Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.
COFFEY, Circuit Judge. Thomas Cunningham was convicted after a jury trial of one count of producing child pornography in violation of 18 U.S.C. § 2251(a) and sentenced to a term of 210 months’ imprisonment. On appeal, Cunningham claims that: 1) his conviction should be reversed because the government failed to lay a proper foundation for the admission into evidence of the photographic prints reproduced from the digital files on his computer; and 2) his sentence should be vacated because the trial judge’s decision to impose an upward departure was based on factual findings determined by the judge and not a jury in violation of his Sixth Amendment right to a jury trial, or in the alternative, because the upward departure imposed by the court was unreasonable. We affirm his conviction and sentence.
USA v. Turcotte, James R. (ND Ill.) [37 pp. - criminal]
Rodrigue, Linda v. Olin Employees (SD Ill.) [34 pp. - civil]
Posted by Marcia Oddi on April 19, 2005 01:09 PM
Posted to Ind. (7th Cir.) Decisions