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August 6, 2009

Seventh Circuit goes into the woods and splits over career offender enhancement

Woods Despite the fact that the Supreme Court has issued a series of opinions recently concerning what prior offenses qualify for various criminal history enhancements under federal law, these issues remain a murky doctrinal mess.  This reality is born out by a split ruling from the Seventh Circuit yesterday in US v. Woods, No. 07-3851 (7th Cir. Aug. 5, 2009) (available here). Here is how the significant majority opinion, per Judge Wood, gets started:

Vernon Woods was convicted of two counts of distributing ecstasy, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a weapon by a felon, in violation of 18 U.S.C. § 922(g). The district court found that Woods was a career offender and thus was subject to an enhanced sentence under § 4B1.1 of the United States Sentencing Guidelines. The court imposed a sentence of 192 months, well above the 84-month sentence Woods might have received without the career offender enhancement. Woods now appeals his sentence, challenging whether, following the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), and this court’s decision in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), his prior conviction for involuntary manslaughter — which required only a finding of recklessness — qualifies as a prior violent felony conviction for the purpose of the Guidelines.  We conclude that Begay and Smith resolve this question in Woods’s favor, and we therefore vacate the judgment of the district court and remand for further proceedings.

Here is how the dissent, per Judge Easterbrook, gets started and ends:

Begay v. United States, 128 S. Ct. 1581 (2008), called into question many of this court’s decisions interpreting U.S.S.G. §4B1.2(a)(2) and similar recidivism provisions, such as 18 U.S.C. §16(b) and §924(e)(2)(B)(ii).  Last January the court set for argument before two panels several appeals that presented issues affected by Begay.  As it happens, the six judges on those panels do not agree on how Begayapplies, so proposed opinions in two cases were circulated to the full court under Circuit Rule 40(e).  We decided to resolve the disputes through this circulation, without argument en banc. The approach proposed by the panel in Woods has the support of a majority and becomes the law of the circuit.  I disagree with some aspects of the panel’s analysis and would proceed differently....

When a recidivism enhancement raises the statutory floor under a sentence, or the maximum allowable sentence, a court should be punctilious about ensuring that the enhancement applies.  But when the prior conviction just affects an exercise of discretion, the approach should be more flexible: when selection of the sentence is not governed by rule, why employ elaborate rules about “divisibility” and “recklessness” that the district judge may elect to bypass in the end?

For anyone not concerned with all the federal sentencing complications for repeat offenders, the opinions in this case can be readily forgotten like old Brothers Grimm fairy tales.  But, for the many folks regularly beset by these often-consequential criminal history issues, it is now essential to head into the Seventh Circuit's Woods.

August 6, 2009 at 11:06 AM | Permalink

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