7th Circuit affirms possible erroneous sentence

Because a defendant's attorney affirmatively waived any challenge to an Armed Career Criminal Act enhancement – despite the 7th Circuit Court of Appeals advisement that the enhancement may have been an error due to a recent Circuit ruling – the federal Circuit Court had no choice but to affirm the District Court.

In United States of America v. Darryl Foster, No. 08-1914, Darryl Foster appealed his 188-month sentence following a guilty plea to unlawful possession of a firearm. The District Court enhanced his sentence under the ACCA because it found he had three prior violent felony convictions, and because he used his gun in connection with the commission of a violent crime, constituting criminal recklessness.

But that finding may have been an error based on the 2008 ruling in United States v. Smith, 544 F.3d 7481, 786 (7th Cir. 2008), in which the Circuit Court held that criminal recklessness isn't a crime of violence under the ACCA. The ruling was decided after briefs were submitted in the instant case. During oral argument, Foster's counsel explicitly declined the Circuit Court's invitation to consider the appropriateness of Foster's ACCA enhancement in light of Smith, wrote Judge Richard D. Cudahy. His counsel responded that caselaw is clear that firing a handgun in and of itself under the circumstances of a case such as Foster's can be considered a crime of violence.

"We cannot make a party's arguments for him, or force him to make arguments he seems determined not to raise," wrote the judge. "Because Foster's counsel affirmatively waived any challenge to the ACCA enhancement, we cannot consider this issue here."

Foster was arrested in 2007 for firing his gun in the air during an altercation. He pleaded guilty, but at sentencing tried to change his story and said he didn't fire the gun. He argued on appeal there was insufficient evidence that he fired the gun he admitted to possessing. The Circuit Court found his challenge to be frivolous. Even Foster's attorney admitted at oral argument that the most spirited defense of his argument he could muster was that he "endeavored to definitely not bring a frivolous appeal."

Foster's arguments are without merit and the judges had no choice but to affirm the judgment of the District Court given that his attorney affirmatively waived the challenge to the ACCA.