Wednesday, September 15, 2010

Au Contraire, Mon Frère

I was puzzled about your statements because your post implied that you think the Seventh Circuit got it wrong. I think they got it right. As such, your implication puzzled me. Your subsequent post clarified the matter.

You ask whether there is anything wrong with the Hitler analogy. You go on to say that analogizing the plea by Figueroa’s wife to Hitler is “sophisticated”. It is not. If anything, it is a cheap argument. You next say that love of his family is “irrelevant to his culpability for a crime and the sentence he receives”. You are half-right. It is irrelevant to his crime. But it is not irrelevant to the sentence he receives. Family ties and circumstances are one of the relatively few reasons that defendants receive a downward departure (page 41; I know it is 2003 but that is the most recent report I could find.).

Second state that the ruminations about “Mexico etc.” are understandable because the judge might be frustrated to sentencing an illegal immigrant to 20 years in a federal prison. But where in the opinion does it say that Figueroa is an illegal immigrant? It says he was native of Mexico. However, he is not charged with being an illegal immigrant and his sentence does not appear to include remand to the Department of Homeland Security for deportation after he completes his sentence (as, I am told, is normally done with illegal immigrants). This suggests to me that Figueroa is not an illegal immigrant. Finally, I commend your use of “etc” to cover the judge’s comments about the relationship between Hugo Chavez and Iranian terrorism. By lumping them in "etc.", they get to be part of a discussion of what country has better prisons as opposed to whether the judge thought the sentence necessary to eradicate a relationship that I am positive was not mentioned at trial.

If you don’t think that “you people” is inflammatory, I can only suggest that you use that phrase in your next conversation with a person whose race is different than your and see whether they think it is an innocuous comment.

As to your third point, I don’t have it out for any current or former jurists. Especially not the one who presided over my first trial. Those particular quotes were used because I have been researching Ponzi schemes and they came up in my research. In the interest of balance, I should also included the comments made by the judge after Aaron Biber pled guilty but, mentions of Hitler aside, I am trying to keep my posts family-friendly.

Finally, the question before the Seventh Circuit is whether, given the comments the judge made, the sentence was procedurally fair. As the opinion notes, Figureoa did not make a reasonableness challenge. Thus, your proposed opinion does not really address the issue on the appeal. Moreover, you assume that because the sentence was on the low end of the guidelines it is per se acceptable. What is the support of that proposition? It seems just as easy to conclude, based on the judge’s remarks, that an American citizen would have gotten a sentence below the guidelines. I bet the American would also have been spared the discussion of national characteristics. As the concurrence notes, maybe the result will be the same sentence. However, he still gets to have a sentencing where it does not appear that the judge is relying on Hugo Chavez’s connection to Iranian terrorism to determine the length of the sentence.

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