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Thursday, April 16, 2015

Ind. Decisions - 7th Circuit decided two Indiana cases yesterday

In USA v. Maria Ramirez (SD Ind., Pratt), a 15-page opinion, Judge Sykes writes:

Maria Ramirez was a courier and bookkeeper in an Indianapolis-based methamphetamine distribution ring. Police arrested her minutes after she left a stash house carrying about five pounds of meth worth more than $100,000. A search of the house yielded two handguns, and two additional firearms were later found in other houses used by her coconspirators. Ramirez pleaded guilty to conspiracy to distribute 50 or more grams of meth in violation of 21 U.S.C. §§ 841(a)(1) and 846, but at sentencing she claimed to have been unaware that her coconspirators possessed guns. Over her objection the district court found that the coconspirators’ firearm possession was reasonably foreseeable to her and increased the offense level under the Sentencing Guidelines by two levels for possession of a dangerous weapon. See U.S.S.G. § 2D1.1(b)(1).

Ramirez raises two arguments on appeal. First, she contends that the § 2D1.1(b)(1) enhancement was wrongly applied because she could not have reasonably foreseen that her coconspirators possessed guns. Second, she argues—for the first time on appeal—that she was eligible for a two-level reduction in her offense level under the so-called “safety valve” for nonviolent first-time drug offenders. Id. §§ 2D1.1(b)(16), 5C1.2(a).

We reject these arguments and affirm. Proper application of the firearm enhancement requires the sentencing court to make an individualized determination that the defendant should have foreseen her coconspirators’ gun possession. At the same time, however, the judge is permitted to draw common-sense inferences when determining whether someone in the defendant’s position reasonably should have foreseen that guns were in use in the conspiracy. Here, Ramirez had substantial and important roles in a sizable drug enterprise. Under these circumstances, it was not clear error to attribute the coconspirators’ gun possession to her for purposes of the § 2D1.1(b)(1) enhancement.

Possession of a firearm in connection with the offense generally disqualifies the defendant from receiving safetyvalve consideration. Id. § 5C1.2(a)(2). Ramirez insists, however, that even if her coconspirators’ gun possession was properly attributed to her for purposes of the § 2D1.1(b)(1) enhancement, the “no firearms” condition for safety-valve eligibility is narrower. More specifically, she argues that she was eligible for the safety valve because she neither possessed a gun herself nor induced another to do so. See id. § 5C1.2 cmt. n.4; cf. id. § 1B1.3(a)(1)(B).

The scope of the safety valve’s “no firearms” prerequisite— more specifically, whether that condition includes liability for a coconspirator’s gun possession—is a question of first impression in this circuit. Because Ramirez failed to raise this argument in the district court, our review is for plain error only, and we find none. * * *

As we’ve noted, this is a question of first impression in our circuit. See Harris, 230 F.3d at 1058 (noting but not deciding the question whether coconspirator liability is a basis for determining possession of a firearm under § 5C1.2). If Ramirez had raised the issue at sentencing, then this would be an occasion for us to decide whether application of the firearms enhancement categorically forecloses eligibility for the safety valve. But her failure to make that argument before the district court limits us to review for plain error.

We rarely find plain error on a matter of first impression. In order to prevail, the defendant must show that “the error was so obvious and so prejudicial that a district judge should have intervened without being prompted by an objection from defense counsel.” United States v. Boswell, 772 F.3d 469, 476–77 (7th Cir. 2014) (internal quotation marks omitted). Matters of first impression are unlikely to be that obvious. See United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012) (“Since a district court cannot be faulted for failing to act on its own motion where the law is unsettled, a matter of first impression will generally preclude a finding of plain error.”). And Ramirez’s eligibility for the safety valve was not so obvious in this case.

It’s true that the scope of the “no firearms” condition in § 5C1.2(a)(2) was flagged as an open question in our decision in Harris. 230 F.3d at 1058 (“Whether co-conspirator liability is a basis for determining possession of a firearm under § 5C1.2 is an issue that we have never addressed … . [W]e cannot reach its merits [here].”); see also id. at 1061 (Ripple, J., dissenting). But the issue remains unsettled in this circuit. Given the lack of guiding circuit precedent, the district court cannot be faulted for failing to raise and apply the safety valve sua sponte. Accordingly, we find no plain error.

In Joseph E. Corcoran v. Ron Neal (ND Ind., DeGuilio), a 23-page opinion, Judge Sykes writes:
In 1997 Joseph Corcoran shot and killed four men at his home in Fort Wayne, Indiana. A jury convicted him of four counts of murder and recommended the death penalty. The trial judge agreed and imposed a death sentence in accordance with the jury’s recommendation.

After his appeals in state court had run their course, Corcoran sought federal habeas relief on multiple grounds. We resolved some of his claims in earlier opinions and Corcoran has abandoned others; only two issues remain. Corcoran argues that the trial judge impermissibly relied on nonstatutory aggravating factors and failed to consider mitigating evidence when deciding whether to impose the death penalty. In a thorough opinion, the district court rejected these claims and denied the writ.

We affirm. First, the Indiana Supreme Court held that the trial judge did not in fact rely on nonstatutory aggravating factors. We previously disagreed with that determination, but our earlier decision—now vacated—did not adequately grapple with the deference owed to state-court factual findings under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(2). Giving the matter a fresh look through the lens of AEDPA’s deferential standard of review, we now conclude that the state supreme court’s factual determination was not unreasonable.

Second, the Indiana Supreme Court reasonably determined that the trial judge considered all proffered evidence in mitigation. The sentencer’s obligation to consider mitigating evidence in a capital case does not require that the evidence be credited or given any particular weight in the final sentencing decision.

Posted by Marcia Oddi on April 16, 2015 09:27 AM
Posted to Ind. (7th Cir.) Decisions