11th Circuit Court of Appeals

Caroline Vodzak  reports at Vodzaklegal that the Third Circuit has found that mere spatial proximity of guns to drugs is not sufficient to enhance a defendant’s sentence of drug possession without a specific finding of fact that the gun “facilitated or had the potential for facilitating the possession of drugs.” 

Mr. West was caught

jury summons.jpgProfessor Ellen S. Podgor reports in her White Collar Criminal Prof Blog that the 11th Circuit Court of Appeals has reversed several convictions in Kottwitz.pdf because of a trial court’s failure to charge the jury on the defendants’s good faith reliance upon an accountant’s advice. The Court has also held that, regardless of the strength

slippery slope.jpgThere is a moment in most great horror movies where the evil presence/bad guy/ghost/homicidal maniac takes out a character who has it coming. For a moment, the audience applauds the wicked antagonist. Think of Jason from Friday the 13th taking out a weaselly teen or the scene in Jurassic Park where the velociraptors eat Dennis Nedry (a/k/a Newman from Seinfeld). Eventually, though, the antagonist continues to do damage to good characters, bad characters, and everyone in between.

If the Federal criminal justice system is the horror movie, then the Federal Sentencing guidelines are the antagonist. Last week, Jason from Friday the 13th re-emerged from the lake. It just so happens that he took out William Irey, a guy who had it coming. But the Guidelines are back with a vengeance to haunt us in a way they haven’t since the Booker decision, and they’ve already started slashing away at the discretion of Federal District Court judges. If Mr. Irey applies for certiorari, then it may be time to start thinking movie antagonist on the level of the big red eye from The Lord of the Rings.

The Bad Guy Who Got What was Coming

Meet William Irey. Mr. Irey was a successful businessman who took multiple trips to Asia where he filmed himself exploiting children. He came back to the States and distributed the images over the internet. I am not going to say more. In fact, I have not found a blog or article on this case that recites the particulars. For that, you have to read the opinion (PDF). In summary, I don’t think I’ve read about worse facts in a child sexual crime case.

Mr. Irey plead to a single count of child sexual exploitation under 18 U.S.C. Section 2251, an offense that carries a range of punishment from fifteen to thirty years to serve. The Federal Sentencing Guidelines called for a sentence of life in prison or the maximum sentence.

The sentencing judge deviated substantially from the guidelines recommendation and sentenced Mr. Irey to serve 17.5 years, just two and a half years over the minimum and a 12.5 year downward variance from the guidelines sentence.

To make things worse, the sentencing judge said some rather unfortunate things. The worst was the court’s decision to refer to Mr. Irey as a victim.

As Scott Greenfield put it in his post on the Irey case, the judges could not live with the prospect of Mr. Irey ever walking out of prison. David Oscar Marcus, at the Southern District of Florida Blogreaches similar conclusions.

The problem is how they got there and the fact that the 11th Circuit has revived the Federal Sentencing Guidelines in a big way.


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politician.JPGBill Rankin at the AJC reports that the 11th Circuit Court of Appeals has reversed a Federal District Court’s dismissal against former Clayton County District Attorney for an alleged violation of his First Amendment right to Free Speech. This is the latest chapter in what was a debacle of a tenure for. Mrs. Scott as the District Attorney in Clayton County, Georgia. Mrs. Scott and husband Lee Scott were both elected to DA and Chair of the Board of Commissioners respectively. Both lost overwhelmingly in 2008. Their tenure in Clayton County accompanied a wholesale change in leadership in that county, including the election of Victor Hill as Sheriff, who promptly fired many sheriff’s department employees. As those employees left the building, Mr. Hill posted snipers on the roof of the law enforcement complex. When she began serving as DA, she had never tried a case to a jury. Mr. Hill’s time in office led to Federal suits as well.

In this particular instance, Ms. Scott’s chief investigator Earl Randall announced that he wanted to run against Ms. Scott’s husband, Lee Scott, for Chair of the Board of Commissioners. Mr. Scott reportedly pounded his fists on a table when he heard the news and demanded that his wife fire Mr. Randall and vowed to “destroy” him. Yes, sometimes the truth is stranger than third-rate melodrama. I’m sure that, when the lawsuit goes forward, we will find out that he exclaimed, “bwahahaha” shortly afterward.

Mr. Randall was fired, and he filed suit againt Ms. Scott individually, in her official capacity as DA, and against the current DA in her official capacity. 

The District Court dismissed the suit, reasoning that there is not First Amendment right to campaign for election, that Ms. Scott was protected by qualified immunity, and that the Complaint did not satisfy pleading requirements. Then the case went to the 11th Circuit, and the plot thickened.


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