Lee Davis: 6th Circuit Says For Sentencing Purposes “Relevant Conduct” Must Be Criminal Conduct

Wednesday, February 6, 2013 - by Lee Davis
Lee Davis
Lee Davis

The Sixth Circuit issued a ruling recently in U.S. v. Ernest CatchingsThe Court held that for an act to be viewed as “relevant conduct” for calculating federal sentencing guidelines, the act must have been an offense that could have resulted in incarceration for the defendant.

The case came about after Ernest Catchings was arrested and charged with using his former clients’ personal information to obtain credit cards in their names. Catchings pleaded guilty to identity theft and it then became necessary to calculate the total amount of loss Catchings’ actions resulted in.
The district court, while calculating the figure, included in its total money lost as the result of credit cards that were in the name of a company Catchings started with a friend. These losses worked to push Catchings into a higher loss bracket. Catchings claims that these cards were not obtained by fraudulent means and therefore the losses should never have been included in his guidelines range.

The matter of the business cards was a complicated one given that Catchings’ former business partner admitted they had opened the credit account together, for the business. However, he said the cards were not to be used for personal expenses. The prosecutor revealed that money had been charged to the cards, but never clearly showed that the charges were personal and not business related. Though the charges may have been unfortunate, there was no proof that they were illegal.

The Sixth Circuit ultimately agreed with Catchings. The Court said that in order for conduct to be relevant for loss calculation, it must also be criminal conduct. The Court felt that Catchings likely took advantage of his former friend and business partner, but that it is not clear based on the evidence presented during sentencing that his conduct was criminal.

Catchings also appealed on a second issue, claiming that his guilty plea was not entered into knowingly or voluntarily and that the lower court made a mistake when it denied his motion to withdraw his guilty plea. The Sixth Circuit disagreed with Catchings in this case. The Court held that following an analysis of the seven factors judges must consider when hearing a motion to withdraw a guilty plea, laid out in U.S. v. Bashara, Catching’s motion was properly denied. The only possible claim Catchings had was one of ineffective assistance of counsel, however, he destroyed that as a basis after it was revealed he reinstated his counsel after first making his claim of incompetence.

The different outcomes on the two appealed issues means that the conviction was affirmed as was the lower court’s denial of his motion to withdraw his guilty plea. However, Catchings’ sentence was vacated and remanded for resentencing in accordance with a new loss calculation.

To read the full opinion, click here

---

(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)


LBMC Technology Solutions Named To Intacct President's Club

LBMC Technology Solutions, LLC, a business software and technology consulting firm, and a member of the LBMC Family of Companies, has been named to Intacct’s 2015 President's Club.   Intacct, a provider of best-in-class cloud ERP software, awards this sales and customer satisfaction award annually to its top-performing channel partners, recognized value added resellers and ... (click for more)

Tennessee July Unemployment Rate Remains Unchanged

County unemployment rates for July 2015, released Thursday, show the rates increased in 53 counties, decreased in 21, and remained the same in 21 counties. Specific county information for July is available here . Davidson County had the state’s lowest major metropolitan rate in July at 4.9 percent, unchanged from June. Knox County was 5.4 percent in July, up from 5.3 the previous ... (click for more)

Boy, 4, Struck By Vehicle Near Tunnel Boulevard

A four-year-old boy was struck by a vehicle near Tunnel Boulevard on Saturday afternoon. A t approximately 4:20 p.m.,  the Chattanooga Police Department responded to 3400 Through St. on a c hild struck by a vehicle.  T he victim was conscious when officers arrived. He was transported to a local hospital. I nvestigators are continuing to compile ... (click for more)

Assessor Bennett, Former Assessor Ramsey In Jetton Camp For Assessor Of Property

Assessor of Property Bill Bennett and former Assessor Claude Ramsey recommended Sterling Jetton as the next assessor at a breakfast fundraiser at Wally's Restaurant in East Ridge on Saturday morning. Mr. Jetton, who spent 27 years in the assessor's office, is running against County Commissioner Marty Haynes in the March 1 Republican primary. Noting the political heavyweights ... (click for more)

DWT Is DUI

A routine narrative of a DUI arrest report goes something like this:   The defendant was operating a motor vehicle in the 00 block of sonsoroad. The driver was weaving back and forth across the marked roadway. The defendant drove through a stop sign. Was stopped at an intersection despite the traffic light was green. Entered the lane of another vehicle and caused a ... (click for more)

Roy Exum: ‘Black Lives Matter’ To Me

Between the time a 14-year-old boy was shot four times late Sunday afternoon on 7 th Street and a 20-year-old reputed gang member was killed Tuesday night on Willow Street, there appeared in my morning reading an article on “Black Lives Matter.” I read it because I mourn over what the black community continues to struggle with in both our city and our country. It is an article, ... (click for more)