July 23, 2004

Indiana Decisions - Four 7th Circuit Decisions Posted Today

Simpson, William S. v. USA (The decision was originally released in typescript: see 7/16/04 ILB entry here)

Southworth, Scott v. Bd Regents Univ WI (WD Wis.)

Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. This is the fifth time this case is before this court.1 At issue in this appeal is the district court’s award of attorneys’ fees and costs to the Plaintiff-Appellees, students (the “Students”) in the University of Wisconsin System (the “University”). The district court awarded the Students these fees and costs in litigation challenging the funding of certain groups by the University as violative of the Students’ constitutional rights. Because the Students prevailed in part, we hold that the district court did not err in its award and we affirm its decision.

USA v. Ward, Aishauna [removed - did not reference Blakely or Booker. It originally concluded: "The district court therefore did not err by enhancing Ms. Ward’s sentence because James was abducted “to facilitate [the] commission of the offense or to facilitate escape.” U.S. Sentencing Guidelines Manual § 2B3.1(b)(4)."]

USA v. Ward, Aishauna (ND Ill.)

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.
FLAUM, Chief Judge. * * * Ms. Ward’s final argument on appeal is a challenge to the four-level sentence enhancement she received for Mr. Ward’s abduction of James at gunpoint. Both Mr. and Mrs. Ward received enhancements based upon U.S. Sentencing Guidelines Manual § 2B3.1(b)(4)(a), which provides that the defendant’s sentence should be enhanced if the district court finds that a person was abducted to facilitate the offense or to facilitate escape. As this Court recently determined in United States v. Booker, 2004 WL 1535858 (7th Cir. July 9, 2004), the Supreme Court’s decision in Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), calls into doubt the constitutionality of such enhancements. See also United States v. Penaranda, 2004 WL 1551369 (2d Cir. July 12, 2004); United States v. Montgomery, 2004 WL 1562904 (6th Cir. July 14, 2004); but see United States v. Pineiro, 2004 WL 1543170 (5th Cir. July 12, 2004) (addressing this issue but holding that Blakely should not be read to invalidate the U.S. Sentencing Guidelines). Under Blakely as interpreted in Booker, a defendant has the right to have a jury decide factual issues that will increase the defendant’s sentence. As Booker holds, the Guidelines’s contrary assertion that a district judge may make such factual determinations based upon the preponderance of the evidence runs afoul of the Sixth Amendment. Thus, in light of the analysis set forth in Booker, we remand these cases to the district court for resentencing.

Gower, Keith v. Vercler, Jeffrey (CD Ill.)

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit Judges.
COFFEY, Circuit Judge. * * * In all, Gower’s inflammatory, implicitly threatening, and personally abusive language, which was uttered after Gower had brandished a butcher knife at the Taylors the night before, is not the type of speech which is protected by the First Amendment and, therefore, the Illinois disorderly conduct statue was not applied unconstitutionally against Gower based on the facts of this case. Thus, the jury was properly allowed to rule in favor of the Defendants on Gower’s claim that Deputies Vercler and Garrett lacked probable cause to arrest him for disorderly conduct. The trial court’s denial of Gower’s motion for a directed verdict was correct.*
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*Because we hold that Gower’s arrest did not abridge any of his constitutional rights, we need not discuss whether, if his constitutional rights had been violated, Gower would have been entitled to physically resist arrest or whether 720 ILCS 5/7-7 is unconstitutional as overly broad. * * *

Posted by Marcia Oddi at July 23, 2004 01:17 PM