Posts

United States v. Bethea, Seventh Circuit, No. 17-3468, 2018 WL 1959638

Bethea was charged with using fraudulently obtained credit cards to purchase merchandise at retailers. He had a combined guilty plea and sentencing hearing. The judge was in his courtroom in Madison, WI. Bethea was in Milwaukee because of his health issues and limited mobility. The judge sentenced Bethea to 21 months imprisonment, which is at the bottom of his guideline range. Bethea appealed on the basis that his plea via video conference could not be taken.

The court noted that Federal Rule of Criminal Procedure 43 governs that “the defendant must be present at … the initial appearance, the initial arraignment, and the plea.” The court found while there are exceptions to this, none of them applied here. The court also found that while other circuit courts haven’t answered this question, four circuit courts have held that Rule 43 requires the judge and the defendant to be there. Further, they pointed out that several circuits have indicated that there were intangible benefits to the judge and defendant being physically in the courtroom including the Sixth, Fourth, Third, Seventh, and the Tenth Circuits, which hold that this is per se error, meaning that automatic reversal should be granted.

The Seventh Circuit Vacated the Judgment of the District Court and remanded the case. No. 17-3468, 2018 WL 1959638

The law firm of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had successful outcomes in more than 60 cases in the past three years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve.

Antwon Jenkins was convicted of kidnapping and using and carrying a firearm in furtherance of a crime of violence. The firearm conviction required a consecutive sentence to the kidnapping charge.

Jenkins argued on appeal that his federal kidnapping offense was not a crime of violence, and thus his gun charge under 18 U.S.C. 924(c) could not stand. The Seventh Circuit agreed.

A conviction can constitute a “crime of violence” under the “force clause” of 924(c) or the “residual clause.” However, the Seventh Circuit in United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) held that the “residual clause” of 924(c) is unconstitutionally vague. Thus, if the kidnapping charge was not a crime of violence under the “force clause,” the 924(c) conviction was improper.

A conviction qualifies under the “force clause” if the crime “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. 924(c)(3)(A).

The Seventh Circuit held that “kidnapping as defined in 18 U.S.C. § 1201(a) does not require the use of force as an element.”

Because the kidnapping offense could not be used to support Jenkins’ conviction on the 924(c) charge, Jenkins’ conviction on the 924(c) count was reversed. See: United States v. Jenkins, No. No. 14-2898 (7th Cir. 2017).

____________________________

Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.