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.)

TNECD Announces 5 New Select Tennessee Certified Sites

The Tennessee Department of Economic and Community Development on Tuesday announced five new Select Tennessee Certified Sites. The Select Tennessee program was launched in 2012 to help Tennessee communities prepare available industrial sites for investment and expansion. The program sets rigorous standards to give companies reliable information when making location choices during ... (click for more)

Tennessee American Water Asks Suck Creek Customers To Voluntarily Conserve Non-essential Water Usage

Tennessee American Water is asking water customers in its Suck Creek District to voluntarily conserve water usage for non-essential purposes until further notice from the company. Extreme drought has caused decrease in the well capacity at the Suck Creek water plant. The Suck Creek wells provide two-thirds of the water for the approximately 250 customers in Suck Creek in Marion ... (click for more)

Cold Case Unit Makes Arrest In Murders Of Brothers In Brainerd Almost 20 Years Ago; Detectives Say Brainerd Jeweler Rick Davis Tied To Incident

The Cold Case Unit set up by District Attorney Neal Pinkston has made an arrest in the murders of two brothers in Brainerd almost 20 years ago. The Hamilton County Grand Jury on Monday indicted 52-year old Christopher Jeffre Johnson on two counts of first-degree murder in the January 1997 deaths of Sean and Donny Goetcheus. The 25-year old Sean Goetcheus and his ... (click for more)

Gang Member, 22, Shot In The Arm On Wilcox Boulevard Early Tuesday Morning

A 22-year-old man was shot in the arm in the 1800 block of Wilcox Boulevard early Tuesday morning. Just after midnight, Chattanooga Police responded to a report of shots fired. Upon arrival, police located Jakobi Buthelezi Johnson suffering from a very minor, single gunshot wound. Hamilton County EMS transported the victim to a local hospital for treatment. The victim ... (click for more)

October Is Breast Cancer Awareness Month

Picture a sold-out baseball game at Wrigley Field or Nationals Park packed with 40,000 fans. That image represents roughly the same number of women and men who die from breast cancer each year.  In Tennessee alone, an estimated 900 women will die from the disease in 2016. It is a sad statistic, but there is some good news: thanks to early detection and improved treatments, ... (click for more)

Roy Exum: What Southerners Sing

Barry Norris plays the organ at Birmingham’s East Lake United Methodist Church and two days ago the church hosted what we used to call “A Singing on the Grounds.” Today it is called a “Hymnfest” and, believe it or not, it is has to be just as fun today as it was 100 years ago when our forefathers tied their horse and wagon to a tree. It just so happens I know a little bit about ... (click for more)