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Friday, September 12, 2008

Ind. Decisions - 7th Circuit posts two additional Indiana opinions

Judge Posner cites Gary newpaper's reporter. In US v. Tanner, Scott and Foster (ND Ind., Judge Lozano), a 9-page opinion, Judge Posner writes:

The defendants were convicted of federal drug and gun crimes, and appeal. Only Foster’s appeal need be considered; his codefendants’ appeals are frivolous, as pointed out in the Anders briefs filed by their lawyers, and are hereby dismissed. * * *

A further wrinkle deserves consideration. A codefendant of Foster, though convicted on the same day as he, had as a result of obtaining continuances not yet been sentenced when the new guideline took effect. Had he been facing the statutory minimum sentence before then, therefore, he would have been eligible for safety-valve relief. But there is no indication that he was facing such a sentence—in fact it appears that he had no criminal record at all, Andy Grimm, “Ex-Boxer Guilty on Drug Rap,” Merrillville Post-Tribune, Nov. 7, 2006, p. A1—or that if he was facing such a sentence the new guideline would help him.

But imagine a case in which two defendants are identically circumstanced, one receives a continuance based on proper case-management concerns and as a result will be eligible for safety-valve relief when sentenced and the other seeks a continuance on the ground that to deny him such relief would create an irrational disparity in punishment. Our analysis would not bar the sentencing judge from granting a continuance on this ground. For it would be a matter not of the judge’s preferring the new guideline to the old one but of his wanting to avoid creating an arbitrary punishment differential, and that is a proper consideration for a sentencing judge. 18 U.S.C. § 3553(a)(6). This is not such a case, however, so the judgment in Foster’s case is AFFIRMED.

In Wilson-El v. Finnan (SD Ind., Judge McKinney), Judge Wood writes:
This case requires us to consider whether, when a prison disciplines an inmate for being a “habitual offender,” it must permit the inmate to challenge the underlying disciplinary convictions that provide the predicate for the later finding. We conclude that the habitual offender proceeding does not have the effect of expanding the rights that the prisoner otherwise has to challenge any of the earlier offenses. This means that Indiana prisoner Shavaughn Wilson-El cannot succeed in his latest effort to obtain habeas corpus relief from one of his disciplinary convictions.

Posted by Marcia Oddi on September 12, 2008 02:32 PM
Posted to Ind. (7th Cir.) Decisions