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Thursday, April 12, 2012

Ind. Decisions - 7th Circuit issues two Indiana decisions today, one a remand for resentencing

In U.S. v. Raupp (SD Ind., Pratt), a 22-page, 2-1 opinion, Chief Judge Easterbrook writes:

This appeal, from the sentence of 100 months’ imprisonment, presents a single question: Whether a conspiracy to commit robbery is a “crime of violence” under the Guidelines.

Robbery in Indiana is a “crime of violence” under the Guidelines and a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. §924(e). See United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Raupp was convicted under Ind. Code §35-41-5-2 of conspiring to violate Ind. Code §35-42-5-1, Indiana’s robbery statute. Application Note 1 to §4B1.2 tells us that an inchoate offense such as conspiracy is a “crime of violence” when the underlying crime is one. This note reads: “ ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” That disposes of this appeal, as far as the Sentencing Commission is concerned.

Raupp asks us to ignore the application note. He contends that it has been superseded by Begay v. United States, 553 U.S. 137 (2008), and later decisions. * * *

Congress left “crime of violence” in §994(h) undefined * * *

Thus the Commission is free to go its own way; it can classify as “crimes of violence” offenses that are not “violent felonies” under §924(e). It can’t do this by application notes that contradict the text of the Guideline, but what the first note to §4B1.2 does is address a question—the treatment of inchoate offenses—left open by the text of §4B1.2, as it is also left open by the text of §924(e) and the holding of James.

Section 924(e) uses the definition of “violent felony” to set 15-year minimum sentences. The Sentencing Commission does not prescribe such a stern and inflexible outcome by defining “crime of violence.” Both §4B1.1 and §2K2.1(a)(2) raise the offense level without setting a mandatory minimum. They are just Guidelines, so the judge is free to impose a sentence outside the Commission’s preferred range after evaluating each defendant’s arguments. See United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc). Raupp was free to contend that a conviction for conspiracy to commit robbery does not imply the same level of dangerousness as a conviction for robbery, and to seek a lower sentence on that account. But he does not assert that the district judge misunderstood the extent of her discretion or exercised it unreasonably. His sole contention is that district judges must ignore the first application note to §4B1.2, and that contention does not carry the day. AFFIRMED

[Circuit Judge Woods dissent begins on p. 10 of 22] The only point that Anthony Raupp has raised on this appeal is whether the district court, in applying U.S.S.G. § 2K2.1(a)(2), correctly added two offense levels under the U.S. Sentencing Guidelines on the ground that Raupp had two previous convictions for crimes of violence. That guideline stipulates that the meaning of the term “crime of violence” for purposes here is the same as that found in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2. The question before us concerns what that definition properly covers and whether it includes Raupp’s prior state conviction for conspiracy to commit robbery. My colleagues conclude that the Sentencing Guidelines in this instance have adopted a significantly broader definition than the one used in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B). With respect, I do not agree with them. Their holding is inconsistent with a long line of cases holding that the text of § 4B1.2 and the nearly identical text in the ACCA have the same meaning. Although there would be no problem if the commentary to the Guidelines on which my colleagues rely were merely explaining concepts within the boundaries established by the Guidelines themselves, there is a problem when the commentary strays outside those boundaries altogether. I am persuaded by Raupp’s argument, and I would therefore vacate his sentence and remand for resentencing.

In U.S. v. Mount (SD Ind., Magnus-Stinson), a 17-page opinion, Circuit Judge Wood writes:
Jaymie Mount disappeared while on release awaiting trial on a charge of possession of a gun by a felon, in violation of 18 U.S.C. § 922(g)(1). He was captured nearly three months later and pleaded guilty two weeks before his trial was set to begin. At sentencing, the district court granted him a two-level reduction in his offense level under the U.S. Sentencing Guidelines for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). In keeping with the plea agreement, the government moved for Mount to receive an additional onelevel reduction, because it was satisfied that he had given prosecutors timely notice of his intention to plead guilty. See id. § 3E1.1(b). The district court denied that motion, however, citing Mount’s flight as its reason. Mount appeals, arguing that the additional one-level reduction is mandatory once the government determines that the criteria spelled out in § 3E1.1(b) are satisfied and it makes the necessary motion. We conclude that Mount is correct, and we thus remand for resentencing. * * *

We conclude that the district court erred here by failing to grant Mount the one-level reduction under § 3E1.1(b) that was triggered by the government’s motion. His advisory guideline range was affected by that error, and we cannot say on this record that the error was harmless. We do note, however, that the district court would have had the authority to select a higher sentence based on its concern about Mount’s decision to go on the lam for several months. We express no opinion about the reasonableness of any final sentence the district court may select.

Posted by Marcia Oddi on April 12, 2012 01:13 PM
Posted to Ind. (7th Cir.) Decisions