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March 16, 2010

Seventh Circuit rules for deadbeat dad (and creates circuit split) on double-counting argument

Lots of different federal defendants have contended in lots of different settings that some set of guideline enhancements results in impermissible "double-counting." Though defendants rarely (if ever) prevailing on this kind of argument, one did today in the Seventh Circuit in US v. Bell, No. 09-2555 (7th Cir. Mar. 16, 2010) (available here). Here are the basics taken from the panel opinion:

In 2008, a grand jury returned a one-count indictment charging Maurice Bell with willful failure to pay child support from February 2000 to June 2007, in violation of the Deadbeat Parents Punishment Act of 1998 (DPPA), 18 U.S.C. § 228(a)(3).... After a jury trial, Bell was convicted and subsequently sentenced to a term of 24 months’ imprisonment and ordered to pay restitution in the amount of $83,890.37....

Bell complained that [a guideline] enhancement for a violation of a court order was impermissible double counting because Bell’s violation of the order was an element of the offense of conviction. The district court disagreed and explained that the Sentencing Commission must have been aware that § 2B1.1(b)(8)(C) would apply to every violation of § 228 and intended that result.  The district court noted that even though a violation of a court order is an element of the offense, the applicable guideline would not take this conduct into account absent the enhancement.  In addition, it followed the reasoning of the Eleventh and Second Circuits allowing the enhancement because the additional two levels punished Bell separately for the distinct harms imposed on the child and his family as well as on the court system for violation of a court order....

Under our circuit precedent, [which as explained above differs from the Second Circuit's], the district court engaged in double counting by applying the cross-reference for § 228 and then enhancing it for conduct that constitutes an element of the offense — violation of a court order. Consequently, to apply both the cross-reference for § 228 and the enhancement for violation of a court or administrative order is impermissible double counting.

March 16, 2010 at 03:56 PM | Permalink

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