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August 16, 2006

A pregnant post-Booker resentencing

Here is an interesting story from Pennsylvania about an upcoming federal resentencing:

In February 2004, Dawn Penzera told her lawyer, a U.S. probation officer and a federal judge that she was pregnant. But when she arrived at a federal prison in West Virginia to begin serving her 51-month sentence on identity theft charges in July of that year, she was decidedly not pregnant.

Now, two years later, Ms. Penzera is being resentenced because of a Supreme Court ruling that made sentencing guidelines advisory only.  As part of the new sentencing, the U.S. attorney's office is asking that Ms. Penzera get an even longer prison term, claiming she purposely lied about the pregnancy to get less time. "I believe the conduct engaged in is reprehensible," said Assistant U.S. Attorney Michael L. Ivory. "It's continued to this day."

Ms. Penzera took the stand on her own behalf yesterday at a hearing on the matter, and told U.S. District Judge Terrence F. McVerry that at the time, she believed she was pregnant. She told him that she missed her menstrual cycle, had gained about nine pounds and was feeling sick -- symptoms similar to those she experienced when she had her oldest son nine years before that.  Ms. Penzera took five home pregnancy tests to confirm her suspicions, she said, but she never went to a doctor because she didn't have health insurance....

Defense Attorney Sally Frick asserted that there is no evidence to prove she wasn't pregnant. "I don't think you can find on this record she deliberately misstated these things to the court," Ms. Frick said. Additionally, she argued to the judge, there was no reason for Ms. Penzera to lie about being pregnant because she knew she was going to prison regardless....

For the judge to give an increased prison term, he must find that Ms. Penzera told a "falsehood," and that it impacted his sentencing decision.... If Judge McVerry agrees to the sentencing enhancement, Ms. Penzera would be subject to a recommended sentencing range of 63 to 78 months in prison. When Judge McVerry originally sentenced her, the range was 51 to 63 months. The judge has taken the matter under consideration and will hold a formal sentencing at an undetermined date.

In short, the government is arguing that Ms. Penzera deserves an extra year in prison for the "crime" of lying about being pregnant.  And her guilt of this "crime," which the defendant contests, will be resolved by the sentencing judge.  Ah, the Framers would be so proud.

August 16, 2006 at 07:30 AM | Permalink


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Let me see if I get this...the prosecution wants to increase her time to a set range of months under the guidelines when those guidelines are only advisory? It's time for the SCOTUS to step in and finally give the District Court judges the ability to judge. Even the postings on this blog lament how every time a District Court judge rules below a guideline range it is called unreasonable by the appellate courts who are never first hand referees to the testimony. The system is getting quite messed up.

Posted by: George | Aug 16, 2006 10:15:51 AM

This is beginning to get quite ridiculous. Having judges determine a defendant's mental state by a preponderance of the evidence for uncharged conduct just screams unconstitutional, regardless of how reprehensible Ms. Penzera's conduct "may" have been (this coming from someone who favors a certain degree of judicial discretion). Is the jury slowly being phased out of the federal system? Has "beyond a reasonable doubt" become merely made for TV drama? Sure Blakely/Booker purported to rest on the essential right to a jury trial, but it is pretty obvious what the practical effects--well understood by SCOTUS at the time--of the advisory system are: judges simply take juries out of the (noncapital) sentencing picture. Rather than having them formally find sentencing "enhancements" beyond a reasonable doubt, as was the thrust of the advisory scheme when initially devised (which may have been naive), judges are now circumventing the jury process entirely.

This really isn't that difficult to understand. How can judges be allowed to make sentencing findings by a preponderance for uncharged and acquitted conduct when SCOTUS just proclaimed that such findings under the mandatory Guidelines system for crimes of conviction are unconstitutional? I of course understand the important distinction between Guidelines sentencing and sentencing of uncharged/acquitte conduct, whereby the latter is constrained by the statutory maximum for the crime of conviction. The point nevertheless remains a forceful one.

The bottom line is that Blakely/Booker are not the "jury trial" saviors that they appear to be on their face. The reality in practice is that juries were not re-empowered, they are now merely avoided entirely. The least SCOTUS could do in response, if the right to a jury is indeed so fundamental, is prohibit the consideration of uncharged or acquitted conduct at sentencing when a jury does not make the necessary findings BARD.

Posted by: Shawn Davisson | Aug 16, 2006 11:15:05 AM

This is yet another example of this blog attacking THE LAW. The last time I checked, perjury is against the law, and if she lied in order to get a lower sentence, and was caught in the lie, well, she deserves more time. If the SOLE reason the court decided to go below the guideline range was because of this fake pregnancy, then the court has every right to revisit its sentence. Because the guidelines are only advisory, the court still has the option of sentencing the same as it did, but at least it now has all the facts.

Posted by: Kevin | Aug 17, 2006 7:21:44 AM

I agree with Kevin. Obviously, prosecutors are as guilty of anyone of getting up on their high horse from time to time, but the comment "oh, how the framers would be proud" suggests today's criminal justice system is so much more favorable to prosecutors that their 18th Century vision. Come on...

Posted by: Tom | Aug 17, 2006 1:16:04 PM

Actually, Kevin misses the point entirely, IMHO. The judge's decision to initially sentence the defendant at the bottom of the applicable Guidelines range may have been based on the so-called "fake" pregnancy. If this is the case, there is nothing wrong with the judge now resentencing to take this into account should he so choose (i.e., move the sentence up WITHIN the original Guideline range).

However, the story indicates NOT that the judge may resentence within the intial range, but that the prosecution is seeking a sentencing enhancement based on the crime of perjury (perpetrating a "falsehood" at sentencing). Accordingly, if the judge chooses to make such a finding--by a preponderance of course--then the applicable Guidelines range itself would increase (from 51-63 to 63-78), not simply the sentence within the original range.

Therefore, this is not an attack on the law. If anything, it is a defense of the constitution, which happens to be the highest LAW. If the judge enhances the sentencing range of the defendant for UNCHARGED conduct through a finding by a preponderance of the evidence, this circumvents the constitutional right to a jury trial and a burden of proof beyond a reasonable doubt as required by due process of LAW.

Even though I am sure the final sentence will be short of the statutory maximum for the crimes of conviction regardless of the judge's decision on the falsehood matter (if not, then we have a big problem), this type of judicial fact-finding still violates the spirit of the Blakely progeny because a defendant is being punished directly for a crime that was never charged and never received a jury conviction. Believe me, I am not sympathizing with the defendant; I am simply defending the Constitution and Sixth Amendment jurisprudence.

Posted by: Shawn Davisson | Aug 17, 2006 2:13:08 PM

Thanks for defending my honor, Shawn, and helping Kevin and Tom get the point. If the woman committed perjury, and a prosecutor believes she merits extra punishment, she should be indicted and subject to a trial on this charge. But that's not what's going on here; rather the prosecutor want to "convict" the defendant of perjury at a sentencing hearing. I am pretty confident that this is not what the Framers had in mind when they wrote the Sixth Amendment.

Posted by: Doug B. | Aug 17, 2006 9:43:43 PM

update on dawn penzera.The goverment lost on the upward departure.Do to lack of proof she was not pregant.But,dawn was given 6 more month because the judge felt she lied. Went from 51 month to 57 month.Dawn got 6 more months with no proof she lied.

Posted by: joe | Jan 31, 2007 3:46:18 PM

If all of you have the oddasity to sit and critisise dawn then go ahead and do it but be warned you are descraseing dawn

Posted by: Nicholas Lenz | Jul 18, 2007 1:26:54 PM

What goes around comes back around Hunnie!!!!

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