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.)

Small Businessperson 2018 Bedwell Nominations Due March 30

Do you know a successful, small businessperson whom deserves recognition?  Now is the time to nominate such a business leader. The 2018 Mel Bedwell Award luncheon sponsored by Pinnacle Financial Partners, slated for Wednesday, May 16, at the Museum Center at 5ive Points, will recognize the 25th Small Businessperson of the year recipient. The annual awards luncheon will ... (click for more)

Chattanooga Chamber Calendar Of Events March 19-23

March 19, Ribbon Cutting for Chattanooga Sports Chiropractic Institute, PLLC 11:30 a.m. to Noon Chattanooga Sports Chiropractic Institute, PLLC: 1200 Mountain Creek Rd., Ste. 430   March 20, Reality Check at Red Bank High School 7:30 to 11 a.m. Red Bank High School: 640 Morrison Springs Rd . Reality Check teaches ninth graders ... (click for more)

Driver Crashes Into Forgotten Child Fund Building

T he Forgotten Child Fund building on East Main Street suffered an estimated $70,000 when a car crashed into it early Sunday morning. The driver in the wreck was arrested. Officials of the fund had to shut off electricity and water to the building. The fund provides presents to needy children at Christmas. (click for more)

Severe Storms Possible On Monday

The Chattanooga area could see severe storms on Monday. Here is the Hazardous Weather Warning from the National Weather Service: Severe Thunderstorms Possible late Monday and Monday Evening... ...Rain Changing to Snow Showers across the Higher Elevations Tuesday Night through Wednesday Night... Another storm system will move across the Southern Appalachian Region on Monday ... (click for more)

Why Are Pictures Of Our President And Vice President Not Hanging At Our Federal Courthouse?

I would like to know why the pictures of our President and Vice President have not been hung in our Federal Courthouse. They have been approved by the White House. Every time I call they tell me they are on order. Tommy Fryar (click for more)

Roy Exum: Battling The Beggars

The revelation that Chattanooga Police Chief David Roddy wants to crack down on the city’s panhandlers is every bit as refreshing as the beautiful jonquils now bursting forth across our city. In a recent poll on Chattanoogan.com, over 80 percent of those who live here indicated they are scared to go downtown and that is inexcusable. This is no way for anyone to live. But I can ... (click for more)