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.)



New Hamilton County Businesses

Here are the new businesses from the County Clerk's office: A2Z CANVASS NITA  SLATTON 2 RETAIL SALES AND SERVICE OF CANOPY'S 2001 WHEELER AVE CHATTANOOGA TN 37406 BAREFOOT GYPSY BARBARA  RODRIGUEZ 3 CRAFTS, GIFT SALES ONLINE 3600 LEE PIKE SODDY DAISY TN 37377 BAXTER HOME INSPECTIONS CHARLES H BAXTER, III 3 HOME INSPECTIONS ... (click for more)

Templeton And Cothern Become Members At Patrick, Beard, Schulman & Jacoway, P.C.

Patrick, Beard, Schulman & Jacoway, P.C. announces that John H. Templeton and Jeremy M. Cothern have been elected to firm membership. The 15-attorney, full service law firm offers business formation, governance, and transactions, estate planning, probate, and civil and criminal litigation for businesses, utilities, government entities, and individuals.  Mr. Templeton ... (click for more)

1 Killed, Another Injured In Shooting On The Southside Early Sunday Morning; Delivery Driver Carjacked On Southside Earlier

One person was killed and a second person injured in a shooting on the Southside early Sunday morning. The victims are Sharone Porter, 22, who was killed, and Torrie Porter, 24, who had non-life threatening injuries.  At 2:47 a.m., Chattanooga Police responded to 1400 Cowart St.  on a person shot. Upon arrival, Chattanooga Police found two victims suffering ... (click for more)

Bradley County Deputy Shoots And Kills Stabbing Suspect At Charleston

A Bradley County deputy shot and killed a man who was a suspect in a stabbing early Sunday morning. The Sheriff's Office said, "At approximately 11:54 p.m. on Saturday, a call was received at the Cleveland/Bradley County 911 Center to report a stabbing at a residence on Leyland Drive in Charleston. "The caller indicated a male had been stabbed and another male had fled from ... (click for more)

The Growing Monopoly

Over the last decade, five tech giants have risen to the top, and created, discovered and invented services and products that have made these companies worth billions today. Those five, of course, are Facebook, Apple, Amazon, Microsoft, and Google. Each of these companies are responsible for several products and services that we use in our everyday lives. They have devoured the ... (click for more)

Roy Exum: The Last Day Of School

AUTHOR’S NOTE: This story first appeared in the Chattanooga News-Free Press in the late 1970s and every year about this time I am asked repeatedly about it. It is far and away the most famous story I have ever written – copies have been sent to me from numerous foreign countries, it’s included in teaching manuals and people I haven’t seen in years get in touch when they read it ... (click for more)