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The Eight Circuit Holds That A Check Is Not A Machine Or A Device

Imagine that you know someone who committed a federal crime.* A friend, let’s say. You want to be supportive, so you go to the sentencing hearing.

You walk into the federal courthouse and marvel at the mahogany and the marble. The courtroom is vast. At the hearing you will learn what will happen to your friend’s future. Will he be sent to prison? If so, for how long? Will his wife have to sell their house?

At the hearing, what would you expect the lawyers and the judge to talk about? Certainly they’ll talk about the crime and how that happened. The judge will want to know why the crime was committed before imposing sentence, you’d think. You can imagine that the lawyers and the judge will talk about whether your friend is otherwise a good person.

Instead, to use the issue presented in the Eighth Circuit’s opinion in United States v. Butler, at a sentencing hearing in our federal

courts, you would hear a lengthy discussion of whether the crime of passing a counterfeit check in person at a bank is an offense that is “originated solely by paper instrument” as the terms are used in 18 U.S.C. S 1029(e)(1) (Spoiler Alert – It isn’t.)

Why would you have been treated to this conversation? Why does the amount of time a defendant will be away from his family and his community turn, in part, on this language game?

Because the federal sentencing guidelines says so. Congress created the United States Sentencing Commission, which, in turn, created the United States Sentencing Guidelines. The guidelines set a range for what a person’s sentence should be for every federal crime (except some very minor misdemeanors).

After Booker, federal district judges are now able to disregard the sentencing guidelines, but the judge has to consider the guidelines, and wade through their many provision, and hear arguments about whether and how they apply, before they can be ignored. And the guidelines create a longer sentence if you create a means to make fake credit cards than if you create a means to make fake checks, to use the example in Butler.

The motivation for the crime, interestingly, has very little to do with the guidelines range. If the defendant stole a loaf of bread to feed his sister’s child, he likely will receive no guidelines reduction. If he stole a loaf of bread and rendered it inedible, simply because he’s a mean guy who didn’t want someone else to eat, he would likely receive no increase in his recommended guidelines sentence.

The guidelines have made our federal sentencing hearings sound like tax audits. For much of these proceedings, they have bleached the morality out of the conversation, except to the extent that the moral system set up in the sentencing guidelines is in issue. Booker has made these hearings better, but, for the people coming to see them, they’re still baroque lawyer games, more than meaningful conversations about how, as a society, we govern ourselves.


* It’s easier than you might think to commit a federal crime. As the good conspirators Volokh have said “If you’re reading this, you’re probably a federal criminal“. Part of the problem that causes overcriminalization is that anytime any issue hits the news, legislators look to score cheap political points and start looking to criminalize something – anything – so that they can get favorable TV coverage. Think of Caylee’s law, but repeated in 535 small ways through 112 sessions of Congress.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

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