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April 4, 2005

7th Circuit, per Easterbrook, discusses reasonableness and restitution

I noted in this weekend post two circuit cases discussing reasonableness in dicta, and today in an opinion from Judge Easterbrook, the Seventh Circuit has given us more interesting dicta to debate.  In US v. George, No. 04-3099 (7th Cir. Apr. 4, 2005) (available here), the Seventh Circuit suggests appellate review under the Booker will resemble "the approach we have taken for decisions to reimprison a person after revoking supervised release."  Here are some highlights from George (with citations omitted):

The Supreme Court's decision in Booker shows that the Guidelines continue to inform district judges' decisions.  Judges need not rehearse on the record all of the considerations that 18 U.S.C. §3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.  That's the approach we have taken for decisions to reimprison a person after revoking supervised release, a subject on which the Guidelines always have been advisory rather than binding.  It makes sense to follow the same approach for the Guidelines as a whole in Booker's wake. Chief Judge Randa explained his decision.  Had he known that the Guidelines continue to have substantial sway, he might have imposed a sentence closer to 60 months; it is inconceivable that anticipation of the ongoing need to start from and respect the Guidelines' framework would have led to a lower sentence. Any error therefore was harmless.

George does not contend that his actual sentence is unreasonable, the post-Booker standard of appellate review.  It is hard to conceive of below-range sentences that would be unreasonably high.  George's is not.  The United States would have better claim to be the party aggrieved by the district judge's disposition, and it has not appealed.

In addition to this discussion of reasonableness, George also addresses Booker's applicability to restitution awards in the federal system (which depend on judicial fact-finding):

George's contention that Booker requires juries rather than judges to assess restitution is misguided.  There is no "statutory maximum" for restitution; indeed, it is not a criminal punishment but instead is a civil remedy administered for convenience by courts that have entered criminal convictions, so the sixth amendment does not apply.  We have accordingly held that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not affect restitution, and that conclusion is equally true for Booker.

Thanks to White Collar Crime Prof Blog, which discusses George here, for the pointer.

April 4, 2005 at 04:44 PM | Permalink


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Isn't it pretty clear that Judge Easterbrook has this wrong on both points? (1) "Unreasonable" is not the rule of decision for post-Booker sentencing; it is the standard of review. The rule of decision is that the sentence be sufficient but not greater than necessary (and that before making that judgment, the district court consider a long list of factors, one of which is the Guidelines). The standard of review, the Supreme Court said, is whether the decision below was "unreasonable"; that means, the sentence should be affirmed unless the district judge was unreasonable in determining that the sentence s/he selected was "not greater than necessary" (on a defendant's appeal) or that it was "sufficient" (on a government appeal). That the sentence is or is not within the Guidelines would seem to have some bearing on that question, but wouldn't be determinative. The judge's statement of reasons should be particularly informative.

(2) As for restitution, most (if not all) other Circuits say it is a criminal punishment (so does the U.S. Code for that matter, 18 U.S.C. 3556). (This has come up in the context of applying the ex post facto clause, for example.) And in any event the question under Apprendi (or Blakely, or Booker) is (or should be) not whether restitution has a "maximum" but whether the maximum punishment for the offense of conviction can include restitution without the proof of additional facts (typically, loss) beyond those implied by the verdict. Of course, the answer to that is No. Therefore, to the extent that either a statute (18 USC 3663A, for example), or Guideline (USSG 5E1.1, in other words) tries to make restitution mandatory upon conviction, without proof at trial of the loss amount and the identity of the "victim" (which the substantive criminal law makes largely irrelevant at trial, and often more prejudicial than probative), it violates Apprendi as intepreted in Booker.

Posted by: Peter G | Apr 4, 2005 6:28:18 PM

Strong points, Peter. Since Easterbrook got iy wrong in Booker, there is perhaps reasons to be suspect of his interpretations of these guideline precedents. That said, I think George will have some legs at least until SCOTUS speaks on these issues.

Posted by: Doug B. | Apr 4, 2005 7:42:36 PM

I don't disagree with a word in your response, Doug.

Posted by: Peter G | Apr 4, 2005 8:30:38 PM

If Easterbrook J is correct on the characterization of restitution as a civil remedy, is not the necessary implication that the Seventh Amendment must apply? Which gets us all back to footnote 14 in Kelly v Robinson 479 US 36 (1986). Is not the reasoning in Kelly that criminal restitution legislation is criminal in nature? The footnote explains that the 7th Amendment does not apply. But if Easterbrook is right about 18 USC § 3663, then it should follow that for any amount of restitution in excess of $20 a jury must decide the amount of loss?

Posted by: BM | Apr 5, 2005 11:44:55 PM

Not only is the 7th circuit in the minority (along with the 10th, on interpreting restitution as a civil remedy, it has ignored clear precedent from its own Judge Posner as to the criminal nature of restitution.
Look at United States v. Fountain, 768 F.2d 790, 800 (7th Cir. 1985).
I'll provide an excerpt:
"If by ‘restitution’ in criminal law (a distinct concept from civil restitution) we mean simply an order in a criminal case that the criminal restore to his victim what he has taken from him, we are speaking of a form of criminal remedy that predates the Seventh Amendment. Restitution indeed is the earliest criminal remedy . . . . Even after the rise of the state we find restitution used as a criminal remedy . . . .
The question is, what does restitution as a criminal remedy comprehend? As the word implies and history confirms, the original conception is that of forcing the criminal to yield up to his victim the fruits of the crime. The crime is thereby made worthless to the criminal. This form of criminal restitution is sanctioned not only by history but also by its close relationship to the retributive and deterrent purposes of criminal punishment. The fact that tort law may also have deterrent purposes . . . does not make every payment to the victim of crime a tort sanction; it just shows that tort and criminal law overlap."

No 7th Circuit case after the passage of the 1996 MVRA has ever cited Fountain for this passage, and it has never been addressed by any 7th Circuit court. Yet since United States v. Newman, 144 F.3D 531 (7th Cir. 1998) the 7th ckt holds that restitution is a civil remedy.
My Note on restitution is coming out in the Fordham Law Review May 2005 issue.
Brian Kleinhaus
Fordham '06

Posted by: Brian Kleinhaus | Apr 9, 2005 4:07:49 PM

My husband and I are psychotherapists in private practice for 20 years in Claremont,CA. My youngest brother was sentenced to 50 years to life for a minor drug offense and $10,000. restitution when there was no injury to property or other persons involved. It was a sentence for drug possession which would have been 180 days had it not been for the 3 Strikes Law. His priors 20 years earlier involved drug possession and assault with a weapon.
At present he is trying to appeal the restitution. My brother has served 9 years of this sentence in Corcoran prison. Six years of it in the SHU. We are seeking assistance for him.
Can you direct us to information which might be useful in terms of what guidelines are used in applying such restitution?

Many Thanks,
Maria Andrade & Sy Cohn,

Posted by: Maria Andrade | Jul 12, 2005 9:29:16 PM

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Posted by: | Oct 14, 2008 9:09:24 AM

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