Seventh Circuit, spliting 5-4, refuses to reconsider guideline error remedy after Peugh
A helpful reader alerted me to this Seventh Circuit order denying rehearing in US v. Hawkins and this set of opinions from judges on the panel explaining how the Supreme Court's recent ruling in Peugh enters the analysis. I fear that the legal issues being debated here are hard to unpack (though they are fascinating), and thus I will here just reprint the first paragraph from Judge Rovner's dissent from the denial of rehearing, which helps spotlight the issue being debated:From here.
Since July 25, 2003, Bernard Hawkins has been sitting in a Federal Correctional Institution, where he is scheduled to remain for approximately twelve-and-a half years. It is uncontroverted that the district court erred when it calculated his sentence using the career offender enhancement, and had the court not erred, his calculated sentencing range would have been approximately ten times less — somewhere in the range of 15-21 months. Yet despite the known and conceded error, we are told that for the sake of principles of finality, Hawkins must remain in prison for the entire 151-month sentence. My dissent to the panel opinion elucidated the reasons why I believe this was the wrong result. In the interim, the Supreme Court issued a decision in Peugh v. United States, 133 S.Ct. 2072 (2013), addressing the question of how appellate courts should view the effect of errors that sentencing courts make when they select the incorrect United States Sentencing Guideline as a starting point. In light of that decision, and for the reasons articulated in the dissent to the panel opinion, I believe it is our duty to reconsider Mr. Hawkins’ case and therefore I respectfully dissent from the denial of rehearing.
These are the kinds of cases that scream for the President to cut through the red tape and commute this man's sentence. Serving 151 months in prison when you would have served 15-21 months if a mistake had not been made concerning his criminal record is intolerable. This man has already been in prison for ten years of what should have been a sentence of about one and a half years.
A review of the original appellate decision which this panel was reconsidering in light of a new U.S. Supreme Court decision but ultimately left undisturbed sheds a little more light on what happened in the underlying case.
When Hawkins was sentenced in 2003, walk away escape offense were considered violent felonies under 7th Circuit precedent, so the misclassification of these offenses was not raised on direct appeal. In 2009, the U.S. Supreme Court held in the Chambers case that walk away offenses were not violent felonies, overturning the 7th Circuit precedent at the time, and this implied that Hawkins was not entitled to be sentenced as a career offender (the underlying crime for which he was sentenced was a brawl with some courtroom bailiffs). He sought post-conviction review in light of the new decision.
The case comes down to whether the Chambers decision can be applied retroactively in his case via a post-conviction review motion. The 7th Circuit concluded it could be in another very similar case a year ago, but the majority felt that the Hawkins case was distinguishable, a conclusion reached in this case on a 5-4 basis in a en banc decision that will probably be appealed to the U.S. Supreme Court (despite the fact that the Defendant will have only a year or so of his sentence remaining by the time that the process runs its course in the absence of a Presidential commutation).
The majority and minority discussions of the importance of finality in criminal sentencing are good expositions of the arguments for and against it that bear reading. I agree squarely with the dissent for the reasons eloquently set forth in that opinion.