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August 20, 2010

Three notable sentencing opinions from the Eighth Circuit

While I was busy teaching this morning, the Eighth Circuit handed down a notable set of published sentencing opinions  Here is the unofficial summaries of the rulings (with links) from the Eighth Circuit's website:

United States v. Earl Foy, Jr., No. 09-3027 (available here):

Record shows defendant was aware of the possible range of sentences he could receive, including the possibility of consecutive sentences, and any Rule 11 violation was unlikely to have impacted his decision to plead guilty; a defendant does not have the right to know his actual sentence before pleading guilty; district court gave defendant adequate notice of its intent to apply an upward variance; district court recognized that the variance from the top of the Guidelines range was substantial and it outlined all of the 3553(a) factors that drove its decision; sentence was procedurally sound and substantively reasonable, and the sentence is affirmed. Judge Bright, dissenting.

United States v. Velma Mireles, No. 09-3267 (available here):

Defendant failed to show court's failure to determine whether the guidelines permitted a traditional departure before sentencing was plain error as the court would have been justified in imposing the same sentence under the traditional departure analysis; district court did not err in basing its sentence on a finding that the conduct was related to drug trafficking. Judge Bye, dissenting.

United States v. Douglas Dvorak, No. 09-3463 (available here):

Evidence was sufficient to support defendant's conviction for money laundering as the government proved defendant withdrew money with the intent of concealing the location of his fraudulently-obtained funds; the interrogatories submitted to the jury rendered harmless any error in the jury instructions regarding the elements of the offense of aggravated identity theft; the indictment was sufficient to charge the offense; no error in ordering two of the eleven aggravated identity theft sentences to run consecutively as the court explicitly referenced the appropriate guidelines sections and provided a reasoned basis for its decision.

Though I am not sure any of these opinion break lots of new jurisprudential ground, the presence of dissents and of other interests facets make all these cases noteworthy.

August 20, 2010 at 05:00 PM | Permalink


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lol had to love this one!

"a defendant does not have the right to know his actual sentence before pleading guilty;"

Just WHY THE HELL would you even plea WITHOUT that info. That is the whole ideal behind a plea BARGAIN you know both sides get something.

if this was the case i'd have to say SHOVE your plea and i'll SEE YOU AT COURT of course you know i'm going to drag it out and make sure i force you to spend as much money as i possible can on every possible motion and expert!

might as well if i'm gonna be basically the same sentence either way.

Posted by: rodsmith | Aug 21, 2010 2:02:27 AM


Judges often go with the recommendation, in fact I imagine that we only heard about this case because the judge did not go with the prosecution's recommendation. What the plea bargainer gets is dropped charges or the prosecution not actively arguing for certain enhancements.

Just because the judge is then free to still apply those enhancements on their own (if sufficient evidence is present to meet the required showing), I don't see how that still isn't a win for most defendants.

In plenty of cases it's the difference between 3 years (the prosecution recommendation), 5 years (what the judge imposes after ignoring the recommendation) or 20 plus years (what the defendant would get after trial). I think most peopl would accept that risk. (Actually, obviously they do).

Posted by: Soronel Haetir | Aug 21, 2010 11:46:32 AM

re: United States v. Earl Foy, Jr

Forty years for 5 counts of mailing threatening communications!! I am with the dissenting judge on this one in that this sentence is excessive.

Posted by: Robert | Aug 21, 2010 1:28:32 PM

i don't considering 95% of criminal cases now are settled via plea's and there is NO way the court system today could possibly operate if that % was reversed now that it behoves the state to play nice. Any sentnce Plea would and SHOULD include the actual sentence! that would be given what your talking about is nothing more than signing a BLANK check or contract.

You keep talking aobut a "recomendation" the judge can take or not! but that's NOT what it is. It is a LEGAL CONTRACT between the defendant and the state!

Posted by: rodsmith | Aug 21, 2010 1:32:24 PM

Yes, and that contract (specifically) does not include what sentence will actually be imposed. Only what recommendations will be made and what enhancements will not be sought. Perhaps it is a failing of a system that splits the role of prosecutor and judge the way we have in the US.

The contract is not between the "government" and the defendant, it is between the executive portion of the government and the defendant. The judiciary is not a party to either the contract or its negotiation. Just another example of why it sucks to be a defendant.

Posted by: Soronel Haetir | Aug 21, 2010 5:02:58 PM

must have a bunch of crooks for defence lawyers i would NEVER sign something that didn't spell out what i was getting for my agreement and i'm sorry when talking about PRISON the main thing i''d be looking for in ANY agreement was the max amount of prison time i'd be looking at. too much and it'd be F U i'll see you in court!

and if even 20% said that...the us justice system would go BOOM!

Posted by: rodsmith | Aug 21, 2010 11:12:52 PM

as for this statement!

"The contract is not between the "government" and the defendant, it is between the executive portion of the government and the defendant. The judiciary is not a party to either the contract or its negotiation."

You MUST be kidding if you think the general american public thinks the justice system is 3 sepearate department that don't talk to each other?

even if i give you what your saying you still fall back on CONTRACT LAW. Any CONTRACT between multiple parties...in your case DA, Judge, Defendant would have to be agreeable to ALL parties to be legal!

for you to claim the judges dont' know what's there is simply....i don't know CRIMINAL?

Posted by: rodsmith | Aug 21, 2010 11:16:57 PM

interesting a week and still no possible way to REFUTE my last statment. Which is pretty much what i figured.

Posted by: rodsmith | Aug 24, 2010 1:33:37 PM

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