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November 14, 2005

Judge Posner's important and flawed work in Cunningham

The Seventh Circuit's ruling in US v. Cunningham, No. 05-1774 (7th Cir. Nov. 14, 2005) (accessible here), to vacate a post-Booker guideline sentence for "inadequate explanation" is perhaps the most consequential circuit Booker ruling in some time.  This is because Cunningham could (and should?) be read to mean that district judges commit reversible error if (and whenever?) they give in to "the temptation ... to impose the guidelines sentence and be done with it, without wading into the vague and prolix statutory factors" of 3553(a).

But, in addition to being important, Judge Posner's work in Cunningham is, by my lights, flawed for a few reasons.  Much of the prose is nuanced to the point of being incomprehensible.  For example, I am still trying to figure out the meaning of this seemingly important sentence from the Cunningham opinion:

We cannot have much confidence in the judge's considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion, as it would have been if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.

Complaints about the prose aside, there is a substantive flaw in the opinion: the opening paragraph suggests that the post-Booker standard for a district court at sentencing is reasonableness.  See slip op. at 2 (explaining that a "defendant can try at the sentencing hearing" to show "that a guidelines sentence is unreasonable in the particular circumstances of the case").  But, critically, reasonableness is only an appellate review standard: it is the standard created by Booker that a circuit court is to use when reviewing a sentence that as been appealed. 

At a defendant's initial sentencing, there is a higher authority that provides the controlling legal standard: in section 3553(a) of the Sentencing Reform Act, Congress has plainly instructed district judges to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes" set forth in 3553(a)(2).  Thus, the task Congress has given expressly to district judges is to figure out, "in the particular circumstances of the case," what sentence is "sufficient, but not greater than necessary" to comply with the SRA's statement of sentencing purposes.  Booker simply provided that circuit judges are to assess how district judges do their job by the standard of reasonableness.

Of course, as I explained in this post the night Booker was handed down, Justice Breyer's remedial opinion in Booker conspicuously fails to mention the "parsimony" mandate of 3553(a).  Nevertheless, it appears that most sentencing judges understand that they must follow Congress's commands in 3553(a).  Perhaps eventually appellate judges will fully get with the program.

November 14, 2005 at 05:59 PM | Permalink


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We had a seminar back in August at which Sentencing Commission Vice Chair Judge Raul Castillo of the Northern District of Illinois kept making reference to 2 cases from the Seventh Circuit holding that a guidelines sentencing was basically a reasonable sentence post Booker. We also had much talk of "variances" -a term apparently much liked by the USSC to describe post-Booker sentences that were not within the applicable guidelines, i.e., their baby. There is reluctance to pay more than lip service to Booker. I agree with you 100% that Judge Posner's reference to the reasonable standard at the sentencing court level is wrong, since that was the standard Justice Breyer announced as the standard of review in Booker's remedial majority.

Posted by: Tom Lincoln | Nov 14, 2005 11:13:39 PM

if the reasonableness standard is appropriate on appeal, then defense attorneys must make that argument at sentencing, in order to preserve the issue for appeal. thus, reasonableness is a standard that district court's must face at sentencing.

Posted by: jon | Nov 15, 2005 4:56:14 PM

Jon: That's just wrong. The "rule of decision" in the district court is what the statute says the district court "shall" do -- comply with 3553(a). What defense counsel must preserve at sentencing is the request that the judge comply with 3553(a). The "standard of review," as stated by Justice Breyer for the Supreme Court in Booker, describes the degree of deference that the district court's judgment will get on appeal. To confuse the two is the equivalent of arguing in the district court that it is all right to make a ruling that is wrong under the law, because it will turn out to be "harmless error."

Posted by: Peter G | Nov 15, 2005 9:28:39 PM

I see no fault in telling a district judge the sentence would be "unreasonable" because the judge knows that's the standard for review. It's no different than telling a judge that it would be an abuse of discretion for you to do so and so where 'abuse of discretion' is the appellate standard of review. It's a meaningful way to get the district judge's attention by saying "it would be reversible error for you to do X." While blunt, I see no logical flaw here, althought it could have been expounded upon further.

Posted by: BruceM | Nov 23, 2005 12:23:06 PM

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