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.)


Beltone Announces Grand Opening In Hixson

Beltone is celebrating its grand opening for its newest store located at the Walmart Shopping Center, at 5756 Highway 153, Suite 116 in Hixson on  June 8  at 3 p.m. There is no cost to attend. There will be refreshments and snacks after the ceremony.  Officials said, "Come join us for this occasion with the Chattanooga Chamber of Commerce, and ... (click for more)

Chattanooga Women's Leadership Institute To Host Leadership Luncheon

Chattanooga Women’s Leadership Institute (CWLI) will host a Leadership Luncheon highlighting the importance of acknowledging mentors in the workplace on  Friday June 5, at The Chattanoogan from  11:30 a.m. – 1 p.m. One of the themes for 2015: recognizing and acknowledging the importance of mentors – even though our mentors may not look like us. ... (click for more)

Work To Start Later This Year On Major Reworking Of U.S. 27 Downtown; 31 Walls To Be Erected As Cameron Hill Faces More Cuts

Work is set to start later this year on the $80 million reworking of U.S. 27 in downtown Chattanooga. TDOT's Jennifer Flynn said all of the right of way has been acquired and construction bids are tentatively scheduled to be opened in August.  The 1.4-mile project includes U.S. 27 from I-24 to south of the Olgiati Bridge.  Work was completed earlier this year ... (click for more)

2 Hurt At Soddy Daisy In Train/Car Accident

Two people were hurt in a train and car accident in Soddy Daisy. More information will follow as it becomes available.   (click for more)

Erlanger Electronic Medical Records Purchase Doesn't Add Up - And Response (2)

Erlanger has recently announced their decision to purchase a $100,000,000 Electronic Health Information System. Something smells. Erlanger's downtown campus has 760 licensed beds, according to hospital-data. That would equate to $131,578 per bed for this system (now that's a lot of ipads). Please re-read that simple math. I use to manage an Electric Medication Administration ... (click for more)

Roy Exum: City Limits Worry Dogs, Cats

If you are a dog or a cat in the Chattanooga area, it is very important to know exactly where the city limits are. You need to know that if a stray animal is rescued in the city, it is taken to one of the finest animal shelters in all of America. But if the errant pooch or tabby is found in Hamilton County – outside the city limits -- it is taken to arguably the worst animal facility ... (click for more)