Courts may ignore guideline determination, rules 7th Circuit.

• Author: Ziemer, David

Byline: David Ziemer

Even after the U.S. Supreme Court held that the sentencing guidelines were only advisory, that court and the Seventh Circuit Court of Appeals have continued to hold that a sentencing court must nevertheless determine the applicable guideline correctly for the sentence to be valid.

However, a May 14 opinion by the Seventh Circuit suggests that is not necessarily so, provided the court makes clear that the sentence is not dependent on a given determination.

Doing so will make the often nit-picking review of issues like this under our now advisory guideline scheme unnecessary, Judge Terence T. Evans wrote for the court.

The court consolidated two cases, one from the Western District of Wisconsin and one from the Northern District of Illinois.

In the Wisconsin case, Adolfo Ortiz was charged with illegal entry into the United States after removal.

At sentencing, the parties disputed whether a prior conviction for false imprisonment constituted a crime of violence under the illegal reentry guideline, U.S.S.G. 2L1.2(b)(1)(A)(ii).

U.S. District Judge Barbara B. Crabb concluded that it was, adjusting the base offense level by 16 points. The resulting guideline range was 77 to 96 months, and the court imposed a sentence of 77 months.

In the Illinois case, Ray Sanner was convicted of bank robbery. At sentencing, the parties disputed whether the value of a stolen car used in the robbery should be included in determining amount of loss.

The court included the value of the car, resulting in a guideline range of 63 to 78 months. Without inclusion of the car's value, the range would have been 57 to 71 months. Regardless, the court imposed an above-guideline range of 96 months.

Both defendants appealed, but the Seventh Circuit affirmed both sentences.

Ortiz

The court declined to decide whether or not Ortiz' prior false imprisonment conviction was a crime of violence or not, stating it was unnecessary to do so.

Judge Evans noted that even if the conviction wasn't a crime of violence, it would nevertheless result in a four-point increase in the offense level as any other felony or an 8 point increase as an aggravated felony.

In addition, his sentence could have been increased 16 levels based on a prior battery conviction as a habitual offender -- indisputably a crime of violence under the guideline.

The court continued, however, stating that, faced with thorny guideline issues, the sentencing court can avoid deciding them altogether...