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

Wednesday, February 06, 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.)


Chattanooga Business Calendar Oct. 25 - Nov. 1

MO/27 Get a Job -- Tyner High School 10:17 a.m. to 3:55 p.m. Tyner High School: 6836 Tyner Rd. Get A Job instructs 10th graders on the finer points of interviewing skills, completing job applications, dressing for success and other topics of importance for the 21st century workforce.  Community volunteers are needed to assist with this event.  Please contact ... (click for more)

TEDxUTChattanooga Is Saturday - Participation Available Online

Registration for Chattanooga’s first TEDx event has closed, but people can still participate through the free online web stream on Saturday. Free viewing parties will be held in the Card and Benwood auditoriums of the UTC Engineering, Mathematics, and Computer Science Building (corner of Vine and Palmetto streets). Participants in the live event and the on-campus viewing parties ... (click for more)

Man Shot At Apartments On Tunnel Boulevard Wednesday Afternoon, Then 2 Juveniles Shot At Rec Center On Oakwood Drive With Suspects In Custody

Chattanooga police officers responded to the apartment buildings at 404 Tunnel Blvd. Wednesday at 1:21 p.m., where residents say they heard multiple shots fired.  Witnesses said they saw multiple suspects fleeing the scene on foot behind the complex.  The male victim was taken to a local hospital for life threatening gunshot wounds.  Later Wednesday, ... (click for more)

Several Arrested Outside Erlanger Hospital When Crowd Gathers After Woodlawn Shooting

Several people were arrested Monday night outside Erlanger Hospital after a crowd gathered and clashed with police. The crowd included family and friends of 20-year-old Apprentice Berry, who was shot multiple times and killed earlier Monday night at the Woodlawn Apartments on Wilson Street. Erlanger officials said the group gathered at the emergency room, but were later moved ... (click for more)

Chattanooga Has Lost Its Most Popular Citizen - Luther Masingill - And Response

Chattanooga has lost its most popular citizen – Luther Masingill. Although we are saddened we cherish the memories.  All of us have a Luther story.  Mine is the first time I met Luther.  This was before TV and all of Chattanooga listened to Luther on the radio.  I was 12-years-old.  Some of my buddies and I had gone to the State Theater in downtown ... (click for more)

Roy Exum: The Policeman’s Prayer

Every year, when the Law Enforcement Foundation of Greater Chattanooga holds its annual luncheon, it is one of the most heartening displays of what America really believes, down deep inside. The most prominent and influential leaders in the community – well over 1,000 -- gather to pay tribute and pledge their support to our heroes in blue who are unfaltering in their devotion, service ... (click for more)