Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

An Indiana State Police trooper stopped Loving for speeding and asked Loving if he had marijuana on him. Loving sped away, dragging the trooper several feet. Loving drove at high speed through the scene of a recent car accident, endangering first-responders. Officers caught Loving with 271 grams of cocaine and 56 grams of heroin. Loving pled guilty to possessing cocaine and heroin with intent to distribute, 21 U.S.C. 841(a)(1). The district court adopted the PSR findings without addressing the parties’ agreement that Loving should receive a reduction for acceptance of responsibility and that his calculated guideline range should be based on a total offense of level of 23. The court found that Loving’s total offense level was 24 and that his advisory guideline imprisonment range was 57-71 months. Loving objected. The government presented testimony about Loving’s flight as “the factual basis for a one-level upward variance” under application note 6 of U.S.S.G. 3C1.2. The court sentenced Loving to 71 months’ imprisonment, stating that the 18 U.S.C. 3553(a) sentencing factors called for a sentence within the applicable guideline range.The Seventh Circuit vacated. The court did not explain how it calculated Loving’s total offense level. disregarded the parties’ agreement for an additional one-level reduction in the offense level for timely acceptance of responsibility, and misused a Sentencing Guidelines departure provision to determine the calculated range rather than as a basis for an upward departure or variance. View "United States v. Loving" on Justia Law

An eyewitness testified that Turner arrived at Krystal's residence, pulled a handgun from his pants, and fatally shot Krystal. Turner claimed that Krystal grabbed his handgun, which accidentally fired during the ensuing scuffle. Turner admitted that he frequently kept a loaded firearm in his car for protection. The prosecutor asked whether he knew it was illegal to have a loaded gun in his car in Chicago and whether he thought he was “entitled to just break the law.” Turner replied that keeping a loaded gun in his car was not illegal, or if it was, he was unaware of that law.Convicted of first-degree murder, Turner appealed, unsuccessfully arguing that the cross-examination about the legality of his gun possession violated his Second Amendment right to bear arms. After exhausting state postconviction remedies, Turner sought federal habeas relief (28 U.S.C. 2254), reprising his Second Amendment argument. The Seventh Circuit affirmed the denial of relief. The state court addressed Turner’s claim on the merits and its decision was not “contrary to, or involved an unreasonable application of, clearly established [f]ederal law.” The evidence of Turner’s firearm possession was relevant even if his firearm possession was constitutionally protected. Any attempt by the prosecutor to draw an improper character-propensity inference is not a constitutional problem, but a state law evidentiary problem. View "Turner v. Brannon-Dortch" on Justia Law

Gilbreath was convicted of first-degree sexual assault of a child for repeatedly molesting his step-granddaughter, S.L., beginning when she was nine years old. Gilbreath argued that he was denied effective assistance of counsel when his attorney failed to investigate S.L.’s claims that she disclosed the assaults to others in the household; impeach S.L.’s testimony denying her motive to lie with her prior statements discussing her behavioral problems and Gilbreath’s interference with her dating life; impeach S.L. with inconsistencies between her various statements; present testimony from family members corroborating Gilbreath’s version of events and establishing S.L.’s character for dishonesty; and present evidence regarding S.L.’s motive to lie. The district court granted his petition for habeas corpus relief.The Seventh Circuit reversed. The attorney’s explanation of his pre-trial decisions and his strategy as the case unfolded was worthy of being “required reading in every law school trial practice class.” His defense was that S.L. fabricated the allegations; fully aware that a young accuser in a sexual abuse case can be perceived sympathetically by the jury, he sought to demonstrate not that she was a liar but that she was not a reliable witness. Gilbreath failed to demonstrate that the state court’s rejection of a claim of deficient performance was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence. View "Gilbreath v. Winkleski" on Justia Law

Wegbreit founded Oak Ridge, a financial-services company, and worked with attorney Agresti to reduce his tax liability. At Agresti’s suggestion, Wegbreit transferred his Oak Ridge interest to a trust that would convey that interest to an offshore insurance company as a premium for a life insurance policy benefitting the trust. Agresti, as trustee, acquired a variable life insurance policy from Threshold (later Acadia), which shares a U.S. office with Agresti’s law firm. The Wegbreits leveraged the policies by means of policy loans and purchases by shell companies. Acadia, at Samuel’s direction, sold his Oak Ridge interest for $11.3 million. The proceeds were wired directly to Agresti, who conveyed them to Acadia; the Wegbreits did not report any taxable income from the sale. After an audit, the IRS determined that the trust income and policy gains, including those from the Oak Ridge sale, were taxable to the Wegbreits, who had underreported their 2005-2009 income by $15 million. The Wegbreits disputed that conclusion in the tax court. After discovery revealed suspicious documents related to the trust and policies, the IRS asserted civil fraud penalties.The judge found that the trust was a sham lacking economic substance that should be disregarded for tax purposes, agreed with the IRS assessment of tax liability, and imposed fraud penalties. The Seventh Circuit affirmed, noting that the Wegbreits had previously “stipulated away” their assertions, and ordering the Wegbreits’ attorney to show cause why he should not be sanctioned under Rule 38 for filing a frivolous appeal. View "Wegbreit v. Commissioner of Internal Revenue" on Justia Law

After Martin was arrested for purchasing heroin, his pretrial release was revoked for posting a threat on Facebook with the photo and name of a confidential informant. Martin was sentenced to 43 months’ imprisonment, below the guidelines range of 57-71 months. Martin argued that his asthma made him susceptible to COVID-19, from which he previously recovered, and he had unmet mental health needs in pretrial detention. With a direct appeal of his sentence pending, Martin unsuccessfully moved for compassionate release under 18 U.S.C. 3582(c)(1)(A)(i), raising arguments available on direct appeal.The Seventh Circuit affirmed. Martin showed no “extraordinary and compelling” reason for release. In arguing that the judge was biased, as evidenced by the judge’s findings that his rap song threatened a confidential informant and that his health did not justify a lower sentence, Martin essentially argued that the sentencing judge improperly weighed his arguments in mitigation and that this error warrants release. His direct appeal provides a means for him to present these arguments that—if correct— would warrant sentencing relief, but he does not have an extraordinary and compelling reason for release now. A claim of errors in the original sentencing is not itself an extraordinary and compelling reason for release. View "United States v. Martin" on Justia Law

Mansfield entered an open guilty plea to possession with intent to distribute methamphetamine. His PSR recommended an imprisonment range of 188-235 months and listed 26 “[o]ther [a]rrests” in 1992-2013, involving at least 49 charges, including domestic battery and battery resulting in bodily injury, resisting law enforcement, felony intimidation, neglect of a dependent, and drug possession charges culminating in two 2013 felony charges for “Dealing in Cocaine or Narcotic,” and three 2013 felony charges for “Possession of Cocaine or Narcotic.” The disposition for 48 charges was “Dismissed,” “No Action Taken,” or “Unknown.” A 1999 criminal trespass charge was listed as “Not guilty.”Mansfield sought a downward departure but never challenged the accuracy of the PSR or the inclusion of Mansfield’s arrest history. Mansfield raised no objections at the sentencing hearing. The court referenced the parties’ statements, the sentencing memorandum, and the 18 U.S.C. 3553(a) factors, noting the presence of young girls at the drug bust, past leniency, evidence of Mansfield’s desire to improve, and the potential effects of COVID-19 on Mansfield’s health, with a two-sentence reference to Mansfield’s arrest history. The court pronounced a sentence of 188 months’ imprisonment. Mansfield raised no objections.The Seventh Circuit affirmed. Mansfield waived his challenge to the court’s consideration of his arrest history. Even if this point was not waived, a substantial history of arrests, especially if they are similar to the offense of conviction, can be a reliable factor to consider at sentencing. View "United States v. Mansfield" on Justia Law

In 2010, Leszanczuk executed a mortgage contract, securing a loan on her Illinois residence. The mortgage was insured by the FHA. After Carrington acquired the mortgage, Leszanczuk contacted Carrington by phone in December 2016 to make her December payment. Leszanczuk asserts that Carrington told her that her account was not yet set up in their system and that her account was in a “grace period.” In early 2017 Carrington found Leszanczuk to be in default and conducted a visual drive-by inspection of Leszanczuk’s property. Carrington charged Leszanczuk $20.00 for the inspection and disclosed the fee in her March 2017 statement. Leszanczuk claims Carrington knew or should have known that she occupied her property because of the phone conversation and Carrington mailed monthly mortgage statements to the property’s address.Leszanczuk sued Carrington for breach of the mortgage contract and for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, on behalf of putative nationwide and Illinois classes. She alleged that a HUD regulation limits the fees Carrington may charge under the contract and that the inspection fee was an unfair practice. The Seventh Circuit affirmed the dismissal of the complaint. The mortgage contract expressly permits the disputed fee. Leszanczuk has failed to adequately allege that the inspection fee offended public policy, was oppressive, or caused substantial injury. View "Leszanczuk v. Carrington Mortgage Services, LLC" on Justia Law

The Ludwig hiking group purchased vehicle passes from the ranger station in Oregon's Mount Hood Wilderness, federal land administered by the Forest Service, which provides parking areas and trail access. As the hikers crossed the Sandy River on a wooden seasonal bridge installed by the Service, a logjam ruptured, sending a wave of water and debris at the bridge. Ludwig was thrown into the river and drowned.The Seventh Circuit affirmed summary judgment in favor of the government in a wrongful death action under the Federal Tort Claims Act, 28 U.S.C. 2671. Oregon statutes create immunity for a landowner from tort claims for any death that arises out of the use of the land for recreational purposes unless the owner charges for that recreational use; tort immunity applies if the owner charges only a “parking fee of $15 or less per day.” The Federal Lands Recreation Enhancement Act allows the Service to charge a standard amenity fee for an area that contains designated parking; a permanent toilet facility; a permanent trash receptacle; picnic tables; and security services. The Forest Service requires Ramona Falls visitors to purchase a $5 "National Forest Recreation Pass" to park; it tells users to “DISPLAY IN VEHICLE.” The Service does not require a pass or collect fees from hikers, bikers, and horseback riders who do not park a vehicle. It does not matter that the Service included other amenities; the charge was, ultimately, for parking. View "Ludwig v. United States" on Justia Law

From 2010-2017, Issa stole from Weston (his employer), Weston’s family members, and other individuals from whom he solicited money for phony investments. As Weston’s Chief Financial Officer, Issa wielded power of attorney for Weston and exercised almost total control over the family’s considerable assets. Through forgery and fraud, Issa transferred tens of millions of dollars in Weston assets to his own accounts. Issa bought at least 25 residential properties, two private planes, four yachts, and 60 firearms with money that he stole, totaling $77,494,657.Issa pled guilty to wire fraud, 18 U.S.C. 1343. Issa agreed that his offense level should be “increased by 2 levels, pursuant to Guideline 3A1.1(b)(1) because [Issa] knew or should have known" that at least one victim was a vulnerable victim. Issa knew of Weston’s mother’s illness and that another victim was recently widowed. The district court allowed the Westons to make oral statements at sentencing,. In pronouncing the sentence, the district court noted “the very personal nature of the offense,” and the suggestion that Issa named his children after the Westons to ingratiate himself. The Seventh Circuit affirmed Issa’s 200-month sentence, below the 235–293 months Guidelines range, rejecting arguments that the district court violated Issa’s due process rights by admitting and relying upon the victims’ sentencing submissions and applying a vulnerable victim enhancement. View "United States v. Issa" on Justia Law

In 2015, Alverez, Verejano‐Contreras, and Bacallao‐Fernandez created 647 fake credit cards and made $52,631.15 in fraudulent purchases. Verejano‐Contreras absconded and is a fugitive. Bacallao‐Fernandez pleaded guilty to misprision of a felony, was sentenced to 12 months’ probation, and was ordered to pay $1,000 in restitution. The restitution was imposed on a joint and several basis with his co‐defendants.Alverez was convicted of three counts of access device fraud, 18 U.S.C. 1029(a), and 10 counts of aggravated identity theft, 18 U.S.C. 1028A. Alverez was sentenced to 60 months’ incarceration, a below‐guideline sentence. The court ordered Alverez to pay over $50,000 in restitution. Inconsistencies in the sentencing records regarding the amount of restitution and the number of victim payees created confusion regarding that order. The judgment further specified that Alverez was jointly and severally liable for the restitution with her Bacallao‐Fernandez. It also set forth a payment plan.The government conceded to a remand, then agreed that the second restitution order must be vacated and remanded. The Seventh Circuit again vacated and remanded. The restitution order did not address Alverez’s argument for joint and several liability, nor her apparent indigency. On remand, the district court in its discretion may elect to hold a sentencing hearing before entering a revised restitution order. View "United States v. Alverez" on Justia Law