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.)


Metro Dalton’s Unemployment Rate Rises To 10.4 Percent In July

The Georgia Department of Labor announced today that Metro Dalton’s unemployment rate for July was 10.4 percent, up 1.1 percent from 9.3 percent in June. The rate in July of last year was 11.7 percent. The July rate increased as initial claims jumped 111 percent, up by 857 to 1,629 from 772 in June. Most of the increase was due to temporary layoffs in manufacturing. There were ... (click for more)

Northwest Georgia’s Unemployment Rate Rises To 8.5 Percent In July

The Georgia Department of Labor announced that the unemployment rate in the Northwest Georgia region increased to 8.5 percent in July, up eight-tenths of a percentage point from 7.7 percent in June. The rate was 9.0 percent in July a year ago. The July rate increase is primarily due to seasonal factors, such as temporary layoffs in educational services and manufacturing. However ... (click for more)

Jordan Williams Named Manager At Bradley SPCA; President Says Group Taking And Placing Animals

Jordan Williams has been named manager for shelter operations at the Bradley County SPCA following the firing of former director Bobby Anderson at a tumultuous meeting on Monday night. Betti Gravelle, president, said, "Jordan has been with the organization since shortly after its inception and is fully prepared to assume leadership in the daily operation of the shelter as well ... (click for more)

Man Charged In Westview Elementary Rampage Under Treatment At Moccasin Bend

The 22-year-old charged with a rampage through Westview Elementary School is under treatment at Moccasin Bend Psychiatric Hospital, officials said. Aaron Roden had been set for his first court appearance on Thursday morning. Attorney Allen Dunn of the public defender's office said the hearing needed to be delayed. A status court appearance will be Sept. 23 at 1:30 p.m. Sheriff ... (click for more)

Black Creek TIF Decision-Who Guards The Hen House? - And Response

Citizens of Chattanooga were invited to give public comment before their own Industrial Development Board Aug. 15. They arrived to find foxes guarding their hen house.  Many thought the meeting was their opportunity to seek redress in the ill-conceived Black Creek Tax Increment Financing plan. However, they learned it was a sham orchestrated by both the past and present ... (click for more)

Roy Exum: Coaches Vs. ‘Top 25’ Foes

The long-accepted measuring stick for a college football coach has been his win-loss record, with an after-glance at his win-loss record within his conference. But in Wednesday’s editions of the Wall Street Journal, writer David Everson, with the help of Stats LLC, used a much-tougher litmus test when he revealed the records of 65 major-college coaches against opponents that were ... (click for more)