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Tuesday, March 08, 2016

Ind. Decisions - 7th Circuit decides two Indiana cases today; commends ND Ind. judge

In USA v. Anthony Lomax (SD Ind., Barker), a 19-age opinion, Judge Williams writes:

A jury found Anthony Lomax, Brandon Lomax, and Demond Glover guilty of conspiring to possess with the intent to distribute and to distribute 1,000 grams or more of heroin. 21 U.S.C. § 841(a)(1). On appeal, the defendants argue that the evidence did not prove beyond a reasonable doubt that they joined the conspiracy with the intent to further the goals of the conspiracy. They maintain they were running three separate heroin business-es. We reject this argument. Anthony Lomax separately argues that he was not a part of the conspiracy, but instead had a buyer-seller relationship with Brandon Lomax. As such, he claims that the district court erred by refusing to instruct the jury about the buyer-seller relationship. We agree and remand Anthony Lomax’s case for a new trial to include the buyer-seller jury instruction.

Brandon Lomax argues that he was entitled to a jury determination on whether he had two prior drug convictions, and the district court’s finding that he had two prior drug convictions, which enhanced his mandatory minimum sentence to life imprisonment, violated the Constitution. We disagree and affirm his sentence.

Demond Glover also challenges his sentence stating that his case should be remanded for resentencing because he was erroneously classified as a career offender in light of Johnson v. United States, 135 S. Ct. 569 (2015). Because we find that the error was harmless, we affirm his sentence.

In USA v. James Thomas (ND Ind., Springmann), a 7-page opinion, Judge Easterbrook writes:
James Thomas pleaded guilty to possessing cocaine with intent to distribute and was sentenced to 235 months’ imprisonment—a term below the Guideline range of 292 to 365 months for someone with his criminal history who distributed as much cocaine as he did. His appeal does not contest the length of his sentence but does maintain that the procedure the judge used to arrive at the sentence violated the Due Process Clause of the Fifth Amendment. The district judge arrived at the sentence after a multi-­step procedure that the parties agree is the norm in her court: [see pp.3-4 of opinion] * * *

The Due Process Clause requires notice and an opportunity for a hearing. See, e.g., Jones v. Flowers, 547 U.S. 220 (2006). The procedure the district judge used gave Thomas more notice than Rule 32 requires, and more opportunities to be heard than Rules 32 and 43 require. It eliminated any dis-­‐‑ pute about the terms of supervised release, which have be-­‐‑ deviled district courts (and this court) in recent years. See, e.g., United States v. Orozco-­Sanchez, No. 15-­1252 (7th Cir. Feb. 26, 2016); United States v. Kappes, 782 F.3d 828 (7th Cir. 2015). The early announcement of an inclination to deduct two offense levels allowed everyone to prepare for a focused argument on just where in the 235-­ to 293-month range the sentence should fall, without extinguishing the prosecutor’s opportunity to argue for a sentence higher than 293 months or the defense’s opportunity to ask for fewer than 235 months. Both sides used that opportunity. The procedure made everyone better off. Philosophers and economists might call it a Pareto-­superior, if not a Pareto-­optimal, approach to sentencing. Other district judges may deem it worthy of emulation; it is enough for us to call it constitutional. AFFIRMED [ILB emphasis]

Posted by Marcia Oddi on March 8, 2016 06:21 PM
Posted to Ind. (7th Cir.) Decisions