*1 and to that extent we Affirm judgment. appeal
court’s The costs against assessed the Sheriffs De-
shall be
partment.
BAUER, Judge, dissenting.
respectfully dissent. my
It firm conviction this is battery. To it into a expand
case of Title bully case because the victim of this
VII
a woman reads more into Title than I VII
think is appropriate. Taking the com- true,
plaint as it still accuses absolute punching person—
boob of out a weaker
the mark of a but that coward isn’t cov-
ered Title IVIL would affirm. She has right,
a cause of action all a state court but armis, vi et trespass
tort for not Title VII. America,
UNITED STATES of
Plaintiff-Appellee,
Gary ESKE, Defendant-Appellant. W.
No. 98-2524.
United States of Appeals, Court
Seventh Circuit.
Argued Feb. 1999. Aug.
Decided
Rehearing Sept. Denied *2 Eske to judge sentenced court
the district years of in prison months sixteen $2,000 release, and released defendant was fíne. The 1,1990, super- and his on December prison two to terminate release was slated vised however, date; because years from fine, government his the pay failed to 30, 1992, moved, to have on November extended. of period motion, this granted 1, end date December making date, afoul of ran to that Eske 1993. Prior to five law, and was sentenced Wisconsin unspeci- for prison in state crimes (argued), Thomas Washington K. Melvin appeal. on in before us fied the record Schneider, of the United States Office P. term ended state The defendant’s Milwaukee, WI, Plaintiff-Ap- for Attorney, Because the state January 1997. pellee of his federal su- running term tolled Lake Ge- (argued), Granger L. Larraine by release, discharged upon being pervised neva, WI, Defendant-Appellant. for state, a termination assigned' Eske was However, the de- date of June COFFEY, FLAUM Before continued, with the law troubles fendant’s EASTERBROOK, Judges. Circuit brought charges were state and new FLAUM, Judge. the defen- On March against him. petitioned probation officer federal dant’s the dis- the sentence appeals Gary Eske su- of his court for revocation the district him, claiming imposed upon trict release, and on June pervised Facto Ex Post it violated impris- that Eske be court ordered district Constitution, and that the sentence by an followed year, to be oned for evi- on unreliable impermissibly based additional en- latter claim is Although the dence. were to be of which months the first four merit,1 the former one tirely without facility. correctional served fact, sub- supplemental In correct. the total arguing that appealed, Eske court, con- government this mission government years under three additional Facto Ex Post the appellant’s ceded Ex Post violated restraint meritorious, and that defen- claim because, at the time Clause, the law We to be re-sentenced. is entitled dant conviction, he would of his below, set out for the reasons agree, for two additional only eligible been sentence, and remand vacate restraint. government court. to the district case Analysis
Facts
not raise
defendant did
16, 1989,
guilty
pled
Eske
On November
challenge to his sentence
Ex Post Facto
D felonies:
each
two Class
one count
failure,
of this
Because
court.
firearm
felon
possession
unlawful
plain error.
the sentence
applica-
in an
review
making false statements
859, 861
Guy, F.3d
States v.
United
January
On
for a firearm.
tion
Cir.1999)
(7th
(arguments
F.3d
unsupported both
fact
This claim is so
legally
factually or
not bolstered
it on its
are
resolve
that we do not
and law
addressed).
Martinez,
way need not
meaningful
States
See United
merits.
“
ute,
plain
only
A
error
‘is not
could
be sentenced to
great]
time,
is,
a clear error but an error
...
[so
which was at the
and still
failure to correct it could result
a governed
18 U.S.C.
3583. The dis-
(brackets
miscarriage
justice.’
Id.
imposed only
trict court
su-
(citation omitted).
*3
ellipses
original)
in
defendant,
Un- pervised
release
precedent,
der our
sentence
violation than the maximum of three for
D
Class
qualifies
of the Ex Post Facto
3583(e).
by §
felons allowed
When Eske’s
justice
miscarriage
constituting plain
er-
supervised release was extended for the
ror because of the “seriousness
the is-
3583(e)
30, 1992, §
first time on November
Wilson,
sue” at stake. United
States
the governing
was still
statute. At that
(7th
621,
Cir.1992);
e.g.,
962 F.2d
627
see
point,
options:
the district court had two
Anderson,
1290,
States v.
61
United
F.3d
imprison
years,
could either
Eske for two
(7th Cir.1995) (“we
1301
have held that a
supervised
or it could extend his
plain
district court commits
error when it
up to the maximum allowed under the
applies
sentencing guidelines
in a man-
year.
statute —one more
See 18 U.S.C.
ner
that violates
Ex
Post Facto
3583(e).
§
opinion
Under this Court’s
Clause.”);
Seacott,
United States v.
15
McGee,
States v.
United
the district court
1380,1386
F.3d
According-
could not mix supervised
pris-
release with
ly,
finding
that Eske’s sentence is unten-
obligated
on—it was
one or
choose
able under
Ex
Post Facto Clause
(1992).
271,
other. 981 F.2d
As dis-
would
vacating
mandate
that sentence.
3583(e)
below, §
cussed
subsequently
has
amended,
been
and McGee is
longer
no
Ex
The
Post Facto Clause of the
good law.
Constitution bars
“law that changes
punishment,
greater
pun
inflicts
examining
changes
Before
to the
ishment,
than the
law,
law annexed to the
we note that had Eske violated his
crime, when committed.” Miller v. Flori
supervised release a second time before
da,
2446,
482 U.S.
107 S.Ct.
3583,
§
the amendment
(1987) (citations omitted);
L.Ed.2d 351
only
court would have had
one choice: to
Const,
I,
9,§
U.S.
art.
cl. 3. Two elements
imprison him for
maximum
time allow-
(or sentence)
present
must be
for a law
D
years.
able for a Class
felon—two
First,
fall within
prohibition.
“the law
3583(e)(3).
§
It could not extend the term
retrospective,
[or
‘must be
sentence]
supervised
option
because that
is, it
apply
must
occurring
events
before
only
was
available “if less than the maxi-
Withers,
its enactment.’ United States v.
mum
previously
authorized term was
im-
(7th
1167,
Cir.1997)
128 F.3d
(quoting
3583(e)(2). However,
§
posed-”
Miller,
430,
2446).
United revocation of release. a defendant to a mixed im- Under 3583 the maximum term of release even term of prisonment was two for a Class D a sentence it could not such felon, and Eske’s offense allowed originally convicted. 159 when he was up to three release. (7th Cir.1998). Thus, 312, 316 F.3d *4 imposed year The district court of acknowledges could (less maximum) prison than the and sub- year prison him to one have sentenced year years tracted one from the three of release, even and one on orig- release the defendant was option was not available to the inally eligible leaving the two for— initially con- district court when Eske was imposed. release it equals This agree also parties victed. The three of restraint defendant’s 3583(h) change § not the maximum may years possible freedom versus two under place the district court can on a restraint clearly the old a new burden statute — (§ applied Id. at 3583 as defendant. anticipated Eske he not have could when “the is not unconstitutional because his crime was committed. ... a new provision does bur- upon Shorty den for his offense afoul Such sentence runs of our hold- 3583(h) ... amount punishment § the maximum ing may that while facing was on notice of under the retroactively change punish- the form of It is the old statute was life. same under prison ment —i.e. time versus Therefore, applied the new statute.... release —it extend the “total § Shorty, the Ex 3583 does not violate amount of restraint” on the defen- clause.”). Here, however, Facto Post violating dant without the Ex Post Facto year district court’s sentence is one 315; Lynce Clause. 159 F.3d at see also v. release. Mathis, 117 137 519 U.S. S.Ct. apparently arrived at (relevant (1997) inquiry L.Ed.2d 63 through this reference quantum whether the statute increases the 3583(h), provides: § which punishment to which is defendant sub- Graham, ject);
when a term of
release is
Weaver v.
450 U.S.
(stat-
(1981)
required
revoked and the defendant is
101 S.Ct.
67 L.Ed.2d
“lengthens
if
a term of
less than
ute unconstitutional
serve
period
petitioner’s position
the maximum term of
that someone
government
years],
spend”
the court
include a must
[two
straint.).2 Thus, the defendant can estab-
requirement
the defendant be
the Ex
on a term of
lish that his sentence violates
Post
placed
applied
a stat-
imprisonment.
length
after
of such
Clause because
context,
“thought experiment”,
underlying
Employing
this
we believe that the
the dis-
finding
assumptions
sent asserts that
Eske's sentence in
and eventual calculations of
clause, the
violation of the Ex Post Facto
severity and
what constitutes the relative
fi-
analysis
court's
offends common sense.
are
nite
of confinement
best left
limits
commenting
specifics of
Without
on the
legislative
judgment
in its
of either
aspects
dissent’s discussion of the onerous
Sentencing
exer-
capacity, or the
Commission
sentence,
pain”
restraint or the "total
constitutionally delegated power.
cising its
support
say,
it to
we find no
for its
suffice
States, 488 U.S.
v. United
Mistretta
statute,
Sentencing
conclusions in the
(1989).
L.Ed.2d 714
109 S.Ct.
Rather,
prior
Guidelines or our
case law.
comports with the Constitution
should
3583(h) retroactively
in a fashion
ute—
—
be affirmed.
penalty by
“increase[d]
which
punishable.’
crime
[his]
[was]
California
My colleagues agree
prop-
with all three
Morales,
514 U.S.
Dept.
Corrections
all forms of
ositions but add
fourth:
1597, 131 L.Ed.2d
506 n.
equally
“restraint” count
for constitutional
(1995)(footnote omitted).3
purposes.
was sentenced to three
control,
three
years of official
and because
Conclusion
longer
than two the sentence
constitu-
reasons,
tionally
equal-
forbidden. Where does this
the defen-
forgoing
For the
weight
rule come from? Not from
sentence is
and we
dant’s
VACATED,
Re-
Supreme
of the
Not from
court for re-
decision
Court.
mand this case to the district
experience.
common sense or
Ask 100
in a manner consistent with
sentencing
choose, and all 100 would trade
convicts to
opinion.
of loose
for one
EASTERBROOK,
Indeed,
Judge,
in the slammer.
Constitution
dissenting.
equating the two. Perform
forbids
thought experiment. Suppose that in 2001
(1)
assumptions:
start with these
*5
Congress changes
penalty
the
for embez-
§ 3583 authorized the district court
U.S.C.
years’ imprisonment
from five
fol-
zlement
split
to
to a
sentence of
sentence Eske
years’
by
supervised
lowed
ten
release to a
imprisonment
and additional
May
straight 15-year
prison.
term in
that
less;
aggregating
years
three
or
release
penalty
be meted out to an embezzler
(2) the Ex Post Facto Clause of the Con
committed that crime
2000? If all
who
permitted the district court to
stitution
years
equal
of “restraint” are
years’ imprisonment
sentence Eske to two
Clause,
Ex Post Facto
then we would em-
(3) a
punishment;
or
less severe
penalty.
surely
ploy the new
But
split
than
equal
sentence
to
less severe
say
that
is much
would
instead
years’ imprisonment
compatible
harsher than
release and that
Constitution,
with the
even
applied
the new law therefore
not be
did not authorize
sentences until after
split
prior
Suppose
pris-
to
offenders.
the new
Eske committed the crime that led to his
on term were 10
than 15.
original
v.
sentence. See United States
question
pris-
Then the
would be whether
Withers,
(That’s point of the embezzlement hypotheticals.)
cocaine in ill today’s decision
Eske receive year He wanted us to slice
humor. leaving him supervision, with
his term and one un- year’s imprisonment eye. proper- But the court
der a watchful remands, judge is free
ly and the district particular, lawful term —in judge
the district sentence Eske years’ imprisonment. Knowing keep
he cannot him the threat
and dissuade from crime revoking judge inca-
may opt to achieve deterrence and of im-
pacitation via the maximum term
prisonment. am confident Eske will have taken a turn for
think matters
the worse. America ex
UNITED STATES of rel. DURCHOLZ,
Robert A. and Durcholz
Excavating Co., and Construction
Inc., Plaintiffs-Appellants, INC., Defendant-Appellee.
FKW
No. 98-2636. Appeals,
United States Court of
Seventh Circuit.
Argued Feb. Aug.
Decided