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Tuesday, March 10, 2009

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Brazelton (ND Ind., Chief Judge Mlller), a 10-age opinion, Judge Coffey writes:

Police arrested Badayah Brazelton as he exited his home after a witness identified him as the assailant in a shooting. Following his arrest, police obtained a search warrant for Brazelton’s home and discovered guns, crack, marijuana, and other drug paraphernalia. Brazelton was never charged with the shooting, but based on the items found in his house during the search, Brazelton was tried and convicted before a jury on two counts of gun crimes, 18 U.S.C. § 924(c), (g), and three counts of drug crimes, 21 U.S.C. § 841(a)(1). The court sentenced him to 425 months of imprisonment.

Appellant Brazelton argues that his conviction should be set aside, arguing that one of the jurors seated was related to the victim of the shooting that led to Brazelton’s arrest and the search of his home. He makes this argument even though the victim did not testify and his name was not mentioned again after it was mentioned at voir dire. More importantly, though, Brazelton waived the issue raised for argument at trial even though he was aware of the juror's relationship at voir dire, and told the judge during the juror selection process that he did not want the juror to be struck for cause.

Brazelton also claims, and the govern- ment concedes, that he should be resentenced in light of Kimbrough v. United States, 128 S. Ct. 558 (2007) because the district court followed the then-governing case law rejecting Brazelton’s argument that the court had discretion to impose a below-guidelines sentence based on a disagreement with the crack-powder ratio. We agree and remand for resentencing and affirm Brazelton’s conviction. * * *

In this circuit, there is no ambiguity on the question whether the right to an impartial jury can be waived. We have held that “[t]he Sixth Amendment right to an impartial jury, like any constitutional right, may be waived.” * * * Brazelton’s on-the-record decision to pass up not one, but two opportunities to ask that Juror Number Four be struck for cause was a waiver. If a defendant is allowed to twice forego challenges for-cause to a biased juror and then allowed to have the conviction reversed on appeal because of that juror’s service, that would be equivalent to allowing the defendant to “plant an error and grow a risk-free trial.” United States v. Boyd, 86 F.3d 719, 722-23 (7th Cir. 1996).

Brazelton’s second argument, that his sentence should be remanded in light of Kimbrough v. United States, 128 S. Ct. 558 (2007), fares much better. At the time of sentencing, our case law precluded district courts from imposing a sentence based on the court’s disagreement with the crack- powder ratio, see United States v. Jointer, 457 F.3d 682, 686-88 (7th Cir. 2006), thus the trial judge properly rejected Brazelton’s argument to do just that. After Kimbrough, even in a “mine-run case,” district courts are allowed to impose lesser sentences after a determination that the 100- to-one ratio produces a sentence greater than necessary for a particular defendant. Kimbrough, 128 S. Ct. at 575. And this new discretion applies in cases like Brazelton’s that involve the equivalency tables because the tables embodied the 100-to-one ratio. See United States v. Williams, 276 Fed. App’x 491, 493 (7th Cir. 2008). Brazelton raised this issue in the district court and the district court gave no ex-planation as to whether it would have imposed the same sentence if it had the discretion to consider the disparity. Brazelton is entitled to a remand for resen-tencing. See United States v. Padilla, 520 F.3d 766, 774 (7th Cir. 2008).

Posted by Marcia Oddi on March 10, 2009 12:45 PM
Posted to Ind. (7th Cir.) Decisions