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February 6, 2008

Interesting appellate reading from How Appealing

Though not focused purely on sentencing issues, these two items today on How Appealing caught my eye:

Actually, the Seventh Circuit opinion does have a sentencing section, though the start of the sentencing discussion provides the major highlights:

On to the sentence, which at 330 months is exceedingly long.  Shrake did not molest any of the children in the video files or produce them himself.  And he does not have a criminal record.  Yet the sentence is within a properly constructed range under the Sentencing Guidelines. The district judge calculated Shrake’s offense level at 40, which for a first offender supplies a range of 292 to 365 months; the judge sentenced Shrake in the middle of that range, and on appeal such a sentence enjoys a presumption of reasonableness. See Rita v. United States, 127 S. Ct. 2456 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). After Gall v. United States, 128 S. Ct. 586 (2007), stressed the extent of a district judge’s discretion in sentencing, and the limits of appellate review, it is difficult to see how a mid-Guideline sentence could be upset unless the judge refuses to entertain the defendant’s arguments or resorts to an irrational extra-statutory consideration.

February 6, 2008 at 03:35 PM | Permalink

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I have finally had a chance to read the decision in US v. Shrake that was posted at Sentencing Law Policy and on How Appealing. Here is an excerpt from the opinion by the esteemed Judge Easterbrook:The computer on which [Read More]

Tracked on Feb 7, 2008 10:43:11 PM

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Judge Easterbrook: After Gall v. United States, 128 S. Ct. 586 (2007), stressed the extent of a district judge’s discretion in sentencing, and the limits of appellate review, it is difficult to see how a mid-Guideline sentence could be upset unless the judge refuses to entertain the defendant’s arguments or resorts to an irrational extra-statutory consideration.

Wow. So basically Booker never happened, according to Judge Easterbrook. Then again, he dissented in the original Booker case (http://www.ca7.uscourts.gov/tmp/AL1FG279.pdf), so one shouldn't be too surprised.

Posted by: Sentencing Observer | Feb 6, 2008 3:55:07 PM

Sentencing Observer - Could you explain your point a little more? The quoted paragraph seems like a straightforward application of Gall and the presumption of reasonableness that Rita approved (but, oddly, did not require). Arguably those two opinions are inconsistent with Booker (or at least Booker I, the constitutional holding), but that's not Judge Easterbrook's fault.

Posted by: YesBut | Feb 6, 2008 6:06:24 PM

Sentencing Observer, try the same quote with different emphasis: After Gall v. United States, 128 S. Ct. 586 (2007), stressed the extent of a district judge’s discretion in sentencing, and the limits of appellate review, it is difficult to see how a mid-Guideline sentence could be upset unless the judge refuses to entertain the defendant’s arguments or resorts to an irrational extra-statutory consideration

It's a little strange that he attaches much significance to the fact that the sentence is "mid-Guideline," but I'm still not sure what the big deal is. Perhaps he should have given more credit to the notion that a mid-Guideline sentence that a district judge adopts and supports with reasoning can be substantively unreasonable, but (1) perhaps the defendant didn't make that argument, (2) importantly, Gall didn't overrule Rita,and (3) as has been discussed in prior posts, given the amount of discretion allowed by Gall, it's hard to imagine any sentence that would be substantively unreasonable that isn't somewhere in the neighborhood of either the statutory maximum (substantively unreasonably harsh sometimes) or probation (substantively unreasonably lenient sometimes).

Whatever one thinks of Judge Easterbrook's work, he's one of the last judges one could credibly accuse of either not understanding what a Supreme Court opinion means, or putting his personal preferences above what he knows the law to require.

Posted by: | Feb 6, 2008 7:40:32 PM

I don't know the defendants's age, but a 30-year sentence even with good time may well mean he dies in prison. The defendant no doubt did a dreadful thing by possesing and distributing porn, which does indirectly enourage perverts to get kids to pose. But, according to the opinion, the defendant never did actually molest anyone or attempt to do so. I suppose had he known in advance that he would get a virtual life sentence if caught, he may have acted out on his fantasies more directly and actually molested several hundred children for the same price. Curious how draconian sentence are a perverse incentive to commit greater crimes. Or am I missing something?

Posted by: Michael Levine | Feb 6, 2008 8:02:12 PM

If one's morals are restrained only by one's fear of imprisonment, then that's probably correct.

Posted by: | Feb 6, 2008 10:13:05 PM

Having read many of Judge Easterbrook's opinions, I would have to disagree that he's not one to put "his personal preferences above what he knows the law to require" -- he does that all the time.

But substantively, Rita approved a non-binding, rebuttable appellate presumption for within-GL sentences. To say then, as Easterbrook does here, that a sentence w/in the GL is virtually unassailable aside from egregious procedural errors is nonsense. Rita did not close off substantive reasonableness challenges to within-GL sentences & leave Defendants with only procedural challenges. That is *nowhere* in the opinion, and Easterbrook is purely making that up, seemingly as part of re-fighting *Booker*.

But yes, as other commentators have noted, some of this dynamic isn't entirely Easterbrook's fault -- it lies with RBG & her insane decision to join Breyer's remedial opinion (and the Court's decision to bless the presumption in *Rita*).

Posted by: Sentencing Observer | Feb 7, 2008 9:04:49 AM

But substantively, Rita approved a non-binding, rebuttable appellate presumption for within-GL sentences. To say then, as Easterbrook does here, that a sentence w/in the GL is virtually unassailable aside from egregious procedural errors is nonsense. Rita did not close off substantive reasonableness challenges to within-GL sentences & leave Defendants with only procedural challenges.

Rita did not close off substantive reasonableness challenges to within-GL sentences as a formal matter, but given the degree of discretion emphasized repeatedly in Gall, within-GL sentences are "virtually unassailable" as a practical matter unless, as Judge Easterbrook notes, "the judge refuses to entertain the defendant’s arguments or resorts to an irrational extra-statutory consideration."

Substantive reasonableness review is beginning to look a lot like rational basis review in constitutional law, and I don't think that's inconsistent with Rita and Gall.

Even before Gall, Judge McConnell noted in his concurrence in Pruitt (iirc) that within-Guideline sentences are technically reviewable but virtually unassailable.

The general tone of Judge Easterbrook's opinion is very Guideline-y, but I don't think there's any reasonable objection to be made to the substance.

Posted by: | Feb 7, 2008 6:24:21 PM

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