In the Courts

Seventh Circuit Vacates Sentence for Failure to Calculate Offense Level Precisely

In United States v. Bokhari, Nos. 05-1302, 05-13-3 (7th Cir. Dec. 6, 2005), defendants appealed their mail fraud and money laundering sentences arguing that the trial court erred by failing to make precise calculations under the United States Sentencing Guidelines of their total offense levels and the corresponding sentencing ranges. The Seventh Circuit agreed, vacating the sentences and remanding for re-sentencing.

Each defendant received a 6-year sentence for money laundering and a concurrent 5-year sentence for mail fraud as a result of a scheme to defraud the federal government's E-Rate Program. At sentencing, both the presentencing report (PSR) and the government recommended a total offense level of 29, which would have led to a sentencing range of 87 to 108 months. Defendants objected to the PSR and argued for an offense level of 19, which would have yielded a sentence of 30 to 37 months. The district court did not resolve this conflict; instead, the judge apparently estimated that the proper offense level was “around” 26 or 27.

The Seventh Circuit held that the district court should have made explicit and clear factual findings to resolve the dispute and arrive at a definitive offense level. Without this information there is not sufficient information in the record for the appellate court to review the reasonableness of the sentence. The sentence was therefore vacated and the case remanded for “a proper calculation of each defendant's total offense level and sentencing range under the Guidelines.”

Fifth Circuit Rejects Retroactive Application of Booker

In United States v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005), the Fifth Circuit, in a case of first impression, rejected the defendant's bid to apply United States v. Booker, 125 S. Ct. 738 (2005), retroactively on collateral review to an initial 28 U.S.C. ' 2255 motion. While Booker was pending, the defendant, convicted on drug charges, filed and lost a ' 2255 motion to vacate, correct or set aside her sentence. She later appealed, arguing that the Fifth Circuit should apply Booker retroactively to her case.

The Fifth Circuit found that Booker established a new constitutional rule of criminal procedure and noted that Teague v. Lane , 489 U.S. 288 (1989), controlled the retroactive application of such rules. Applying Teague, the court explained that new constitutional rules of criminal procedure are not generally applied retroactively unless the rule fits into one of two exceptions. The first exception, new rules that place certain conduct or persons “beyond the State's power to punish” is not implicated by Booker. The second exception is for “watershed rules” that implicate the fundamental fairness of the proceeding. The court went on to find that altering the degree of flexibility judges have in applying the Sentencing Guidelines and shifting fact-finding duties from the judge to the jury do not constitute a watershed change and that, therefore, Booker should not be given retroactive effect.

Seventh Circuit Vacates Sentence for Failure to Calculate Offense Level Precisely

In United States v. Bokhari, Nos. 05-1302, 05-13-3 (7th Cir. Dec. 6, 2005), defendants appealed their mail fraud and money laundering sentences arguing that the trial court erred by failing to make precise calculations under the United States Sentencing Guidelines of their total offense levels and the corresponding sentencing ranges. The Seventh Circuit agreed, vacating the sentences and remanding for re-sentencing.

Each defendant received a 6-year sentence for money laundering and a concurrent 5-year sentence for mail fraud as a result of a scheme to defraud the federal government's E-Rate Program. At sentencing, both the presentencing report (PSR) and the government recommended a total offense level of 29, which would have led to a sentencing range of 87 to 108 months. Defendants objected to the PSR and argued for an offense level of 19, which would have yielded a sentence of 30 to 37 months. The district court did not resolve this conflict; instead, the judge apparently estimated that the proper offense level was “around” 26 or 27.

The Seventh Circuit held that the district court should have made explicit and clear factual findings to resolve the dispute and arrive at a definitive offense level. Without this information there is not sufficient information in the record for the appellate court to review the reasonableness of the sentence. The sentence was therefore vacated and the case remanded for “a proper calculation of each defendant's total offense level and sentencing range under the Guidelines.”