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August 2, 2007

Seventh Circuit affirms 10-year sentence increase for uncharged murder

The Seventh Circuit today in US v. Santiago, No. 06-3193 (7th Cir. Aug. 2, 2007) (available here), affirms a sentence in which a district judge varied up from a guideline sentence of 20 years to impose a sentence of 30 years because of his "participation in the kidnap and murder of a man named Jesus Colon" even though the defendant "had not been charged with, or convicted of, any offense related to these events."

The case is an interesting read, and the defendant justifiably won't get much sympathy given his background.  But, the case provides yet another interesting example of how defendants in federal court can have their sentences enhanced based on an uncharged murder.  As highlighted in posts linked below, Justice Scalia and four other Justices expressed concerns about this possibility in Blakely, but apparently lower courts are not too troubled by these federal sentencing realities.

Some related posts:

August 2, 2007 at 05:15 PM | Permalink


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The reliance on uncharged conduct, in and of itself, doesn't bother me that much. In allowing a 30-year sentence for the crimes for which Santiago was convicted, Congress must have contemplated that there would be defendants who deserved that kind of punishment. And it's hard to imagine a more deserving defendant.

On the other hand, Santiago pled guilty and cooperated, and in return was handed the functional equivalent of a life sentence. I am actually more bothered by the fact that the District Court does not seem to have given him any credit for pleading guilty.

Posted by: Marc Shepherd | Aug 2, 2007 6:00:44 PM

The defendant received a sentence below the statutory maximum. So, what's the big deal? He faced a maximum of life, and his mando was 20 years. There is, statutorily, nothing the court cannot consider in determining a sentence, including, as here, the so-called uncharged conduct "crisis." The judge didn't use uncharged conduct to impose a sentence beyond the statutory sentence, so there is no problem whatsoever with this sentence, extept, perhaps, it's too lenient when you look closely at the "nature and characteristics" of THIS defendant.

Posted by: rls | Aug 2, 2007 11:28:14 PM

Curious -- both comments above are comparing his sentence to the stat min/max, but neither mentioned the guidelines. As if the guidelines don't exist anymore. Blakley certainly does not say: "as long as you're within the stat min/max it's presumptively valid."

I'd like to hear more thoughts on this case, but with at least a passing nod to the fact that there was a significant departure upward, rather than treating as dispositive the fact that it's lower than the stat max.

Posted by: A DC Wonk | Aug 3, 2007 12:06:48 AM

Blakely? What's that? Oh yeah, the case no-one cares about any more after Booker...

Posted by: rls | Aug 3, 2007 12:17:48 AM

I suppose this is probably constitutional after Booker. But as a policy matter, it's crap. Either the government can prove its case beyond a reasonable doubt to a jury or it can't, and if it can't, that alleged conduct should be entirely, absolutely off-limits. It's a short trip from this (unproven conduct by the defendant) to using unproven conduct by the defendant "associates" or "friends" or "family" to using unproven conduct by unconnected people who, say, look like the defendant.

How about this - every time you get a speeding ticket, allow the state to enhance the fine you have to pay based on how many other times the state thinks you might have been speeding, even though they never caught you.

Posted by: Anon | Aug 3, 2007 10:21:19 AM

Speeding analogy: The statutory maximums for a speeding ticket is not akin to felony statutes. Every defendant knows, when they go to their arraignment and are read their "maximum" penalty, what it is. Sometimes it's life, even death, other times its far below that. Guidelines are not discussed at arraignments (except with truly anal judges). The uncharged conduct argument is such a red herring. Judges have, for ages, used every available source of information to enhance or reduce a sentence within whatever stautory scheme is set by the legislature.

Posted by: rls | Aug 3, 2007 2:16:00 PM

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