A Post For Federal Practitoners And Egg Heads

Those are the only type of folks who will find this post interesting, as it involves a federal sentencing decision from the Seventh Circuit. But what a decision!

As we all know, the Federal Sentencing Guidelines are now just that: Guidelines. They are one factor among several a judge should use in setting the sentence. Well, in this case, as in many others, the defendant argued on appeal that the judge reached and unreasonable sentence. Here is the court’s response:

The defendant pleaded guilty to being a felon in possession of a firearm. The guidelines range for his offense was 188 to 235 months, but the judge sentenced him to 264 months, and the defendant challenges the sentence as unreasonable.

Because it exceeded the guidelines range, there is no presumption that it is reasonable. United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006). But the standard of reasonableness, introduced by the Booker decision, confers broad sentencing discretion. The judge must consider the guidelines but is in no sense bound by them. He is bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a), which are both numerous and vague, thus giving the judge a great deal of running room. United States v. DeMaree, 459 F.3d 791, 795 (7th Cir. 2006); United States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006)

There was no basis for the defendant’s challenging the exercise of discretion by the sentencing judge in this case—and, we add, in cases like it. Not because there were no mitigating factors, but because the balance that the judge struck between them and the aggravating factors was so far inside the outer bounds of his sentencing discretion as to make the claim of unreasonableness frivolous and the appeal a compelling candidate for anAnders brief.

When we put this to the defendant’s lawyer at argument, she said that the defendant wanted her to appeal. No doubt; had he not wanted her to appeal, it would have been serious misconduct for her to appeal. But a defendant has no right to file a frivolous appeal, and his lawyer has a duty to file an Anders brief rather than to argue frivolous grounds for reversal. McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 438 (1988); United States v. Cooper, 170 F.3d 691, 692 (7th Cir. 1999); United States v. Osuna, 141 F.3d 1412, 1415 (10th Cir. 1998); United States v. Humphrey, 7 F.3d 1186, 1191 (5th Cir. 1993).

The reason this blows my mind is that when the Government appeals a sentence as being too lenient, the sentence is routinely reversed. There’s none of this stuff about wide discretion and deferring to the trial court. The appellate courts – including the Seventh Circuit – almost always find an abuse of discretion when the trial court sentences the defendant below the guidelines. Now here is the Seventh Circuit (Posner, who else?) saying that when the situation is reversed – i.e. the defendant arguing the sentence is too harsh – it borders on misconduct for the attorney to file the appeal; that an appellate court has no business re-weighing all these factors.  

The court considered some of the defendant’s arguments in favor of a less severe sentence and then concluded:

But we have gone on at too great a length about the infirmities in the defendant’s arguments. These are arguments to address to a sentencing judge, not to an appellate court. No precise weights can be assigned to such factors in the sentencing balance as the dangerousness of the criminal and (as mitigating that dangerousness) his age and ill health. The striking of a balance of uncertainties can rarely be deemed unreasonable, and certainly not in this case.

That makes great sense. But it needs to apply to appellate arguments by the Government too. If these are issues best left to the trial court in the one situation, they are likewise best left to the trial court in the other situation.

If I was practicing in the Seventh Circuit, the next time the Government appealed one of my clients’ sentences, this language would be all over my brief. Shoot, I’m in the Eleventh, and I’ll still gonna make heavy use of it.

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Explore posts in the same categories: Appellate And Post-Conviction Issues, Legal News

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