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Saturday, October 12, 2013

Ind. Decisions - 7th Circuit decided one Indiana case Friday

In U.S. v. Richard E. Brown, a 15-page opinion, Judge Sykes writes:

For 20 years Richard Brown was the office manager and accountant for a cluster of small businesses in southern Indiana owned by the Walker family. In 2009 the family patriarch discovered that Brown was embezzling money by using company credit cards and writing company checks to pay for personal items and expenses. An audit revealed that during the course of at least a decade, Brown had stolen hundreds of thousands of dollars, gradually putting the businesses in financial straits and destroying their credit.

A federal grand jury indicted Brown on more than 150 counts of wire fraud, mail fraud, and tax fraud. Brown pleaded guilty to a single count of each of these crimes. The advisory guidelines sentencing range was 21 to 27 months’ imprisonment, but the district judge thought that was far too low. The judge settled on a sentence of 60 months, a significant variance from the top of the range. Judgment was entered and Brown appealed.

Weeks later, without warning, the judge filed an amended judgment and attached a written “statement of reasons” to “supplement” the reasons he had given in open court for the sentence. Apparently applying “departure” analysis, the judge recalculated the guidelines range, adding upward adjustments based on the amount Brown embezzled, the duration of the scheme, and the vulnerability of one of the victims. On this revised calculation, the guidelines range was 41 to 51 months. Compared to this range, the 60-month sentence seemed like a less significant variance from the guidelines.

On appeal Brown argues that the district judge violated Rule 32(h) of the Federal Rules of Criminal Procedure by failing to give notice of his intent to apply upward “departures.” He also argues that his 60-month sentence is substantively unreasonable.

We affirm. The judge’s belated effort to adjust the guidelines range introduced complications but did not violate Rule 32(h). That rule requires “reasonable notice” when the district court is “contemplating” a departure from the sentencing guidelines. FED. R. CRIM. P. 32(h). But “[t]he old regime of ‘departures’ is defunct,” United States v. Barlett, 567 F.3d 901, 909 (7th Cir. 2009), and Rule 32(h) does not apply to an upward variance from the advisory guidelines range, see Irizarry v. United States, 553 U.S. 708, 714 (2008). Because departures are obsolete, Rule 32(h) no longer has any work to do.

Moreover, because the judge’s written statement of reasons was filed after Brown appealed, the court lacked the power to substantively alter the sentence because jurisdiction had shifted to this court. Brown’s sentence did not change, though the rationale for it certainly did. To the extent that the judge’s recalculation of the guidelines range amounts to a substantive change, it is a nullity because the court lacked jurisdiction to make the change. If the recalculation simply introduced an inconsistency between the written statement and the oral pronouncement of the sentence, the oral pronouncement controls. Either way, we disregard the written statement of reasons. Considered in light of the court’s oral pronouncement of sentence, the 60-month sentence is reasonable.

Posted by Marcia Oddi on October 12, 2013 06:34 PM
Posted to Ind. (7th Cir.) Decisions