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September 19, 2006

Does Judge Posner know how to Shepardize or KeyCite?

As regular readers know, I have been underwhelmed by the Seventh Circuit's post-Booker work (see here and here), and Judge Posner today provides another reason to worry about what's going on in Chicago.

As Howard Bashman details here, Judge Posner in US v. Reuter, No. 05-4503 (7th Cir. Sept. 19, 2006) (available here), authors a brief decision about burdens of proof after Booker in which he notes that a Third Circuit panel in Grier recently overruled a key pre-Booker precedent apparently without realizing that the Grier panel decision was vacated two months ago when the Third Circuit granted rehearing en banc (details here and here and here and here). 

Judge Posner apparently also overlooks the fact that the Ninth Circuit in Staten has also preserved the burden-of-proof doctrine that he mistakenly believes has been overruled in the Third Circuit (details here).  Perhaps Westlaw and Lexis (and certain blogs) are not readily accessible in all Seventh Circuit chambers.

Though I cannot resist a little Posner-bashing, I should compliment his effort in Reuter to incorporate burden-of-proof concerns into the provisions of 3553(a).  Here is the decision's interesting penultimate paragraph:

With the guidelines no longer binding the sentencing judge, there is no need for courts of appeals to add epicycles to an already complex set of (merely) advisory guidelines by multiplying standards of proof.  The judge is cabined, but also liberated, by the statutory sentencing factors.  28 U.S.C. § 3553(a); United States v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005).  Unlike the guidelines, they bind, but they are broad enough and loose enough to allow the judge to dip below the guidelines range if he is justifiably reluctant to impose a sentence most of which rests entirely on a finding of fact supported by a mere preponderance of the evidence (though in this case, to repeat, the evidence was overwhelming). Section 3553(a)(2)(A) includes among the factors to be considered in sentencing “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”  A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction.  That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

Eagle-eyed readers might also note a conspicuous mis-cite/typo in this paragraph.

September 19, 2006 at 01:52 PM | Permalink


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Umm, isn't it supposed to be 18 U.S.C. § 3553(a)?

Posted by: Steve | Sep 19, 2006 2:02:16 PM

The title of this item assumes that Judge Posner even CARES about precedent. See the NYT review of his most recent (as of this morning) book.

Posted by: Jonathan | Sep 19, 2006 3:34:43 PM

Do we win something if we find the error?

The error is the mis-cite to one of the most commonly cited and most important statutes in federal litigation right now. It should have been 18 USC 3553 (Imposition of a Sentence), not 28 USC 3553, which doesn't exist.

Posted by: Joy Bertrand | Sep 19, 2006 5:40:08 PM

This is not the only example of Emperor Posner having precious little clothing. He just rarely gets caught.

Posted by: Emperor and his clothing | Sep 20, 2006 12:13:25 PM

Does anyone else not think it extremely significant that the Seventh Circuit has now approved of district judges refusing to follow the guidelines because they believe a higher standard of proof is required?

Also, Judge Posner's most recent incoherent and contradictory (internally, intra-circuit, and inter-circuit) decisions in this area make me seriously wonder whether he is intentionally trying to provoke Supreme Court review.

Posted by: JDV | Sep 20, 2006 10:38:18 PM

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