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October 19, 2006

"Today's [Booker] opinion from Judge Posner is so truly bizarre and harmful that it took my breath away."

The quote in this headline comes from an e-mail I received from a lawyer telling me about the latest Seventh Circuit Booker flight of fancy today in US v. Bullion, No. 06-1523 (7th Cir. Oct. 19, 2006) (available here).  As this lawyer explains, "Judge Posner basically says that an appeal from a district judge's substantially-above-guidelines sentence was so frivolous as to require an Anders brief." 

I am breathless, too, primarily because I cannot imagine Judge Posner ever accusing the government of filing a frivolous appeal when it complains about a below-guideline sentence.  Indeed, the Seventh Circuit has more often reversed below-guideline sentences than affirmed them, as detailed here, even on arguments that seem, at least to me, far less viable than the defendant's arguments in Bullion.

Here is Judge Posner's opening paragraph in Bullion (with cites omitted):

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.  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.  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 an Anders brief.

Though Judge Posner likes to harp on the vagueness of 18 U.S.C. § 3553(a), I continue to wonder if he has ever really thought about its central command together with his eagerness to presume the guidelines reasonable.  Section 3553(a) commands the sentencing court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."  If the guidelines are presumptively reasonable in light of this command, that means in this case a within-guideline sentence of 188 months would have been presumptively "sufficient but not greater than necessary"  for the defendant. 

How then can it be frivolous — not just without merit, but frivolous — for the defendant to contest a sentence that requires six more years of imprisonment?!?  Consider also the reality that the fact that the defendant in this case was being sentence after pleading guilty to just a firearm possession offense.  Wow.  Even though Judge Posner is clearly quite hostile to defendants exerting their appellate rights after Booker, it seems quite reckless (and harmful) for him to assert that a decision to appeal an above-guideline sentence is frivolous!

I hope the Government might have the sense to ask Judge Posner to eliminate the suggestion that this appeal was frivolous.  After all, as noted here, the Government moved in Demarree to asked the Seventh Circuit to remove some of Judge Posner's language from a panel opinion that it thought mis-represented the Government's position on Booker.  (The Seventh Circuit rejected that motion, so at least we know the Government sometimes loses before Judge Posner on a Booker-related issue.)

October 19, 2006 at 06:11 PM | Permalink


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Wow, this is indeed questionable at best, not to mention troubling. So, according to Posner, even though a within-range sentence is already afforded a presumption of reasonableness, a sentence approximately 25% above the mid-range sentence under the Guidelines is also so presumptively reasonable as to render an appeal of said sentence frivolous?

This gives a whole new meaning to "heartland."

Posted by: SPD | Oct 19, 2006 7:00:08 PM

If Judge Posner ever ruled a below-Guidelines sentence to be reasonable with language like that used in this opinion, I would say that he is one of the few Circuit Court judges that actually understands the word "advisory." A few weeks ago (in Reuters?) he even said that district judges could use the reasonable doubt standard if they wanted. If we assume that this kind of language indicates how the 7th Circuit will conduct reasonableness review (and he is getting other judges to sign on, after all), then there is developing quite the circuit split on the Pho/Eura, Guidelines-as-policy issue. I think Posner's view is the only tenable one in the face of Booker's constitutional holding. And based on arguments last week in Cunningham, this view is likely to be upheld as well.

As I began, though, there is this toublesome disparate treatment for below-Guidelines sentences ....

Posted by: JDV | Oct 19, 2006 9:26:53 PM

This opinion is truly disgusting, especially when viewed in the larger context of the 7th Circuit's post-Booker jurisprudence. J. Posner has many fans, but they often just discuss his scholarship. As an actual Judge -- particularly in criminal matters -- J. Posner's work can be quite disappointing.

Posted by: Truly Disgusting | Oct 20, 2006 2:38:48 PM

i'm in the eleventh circuit, and this case still blows my mind.

the next time the government appeals one of my client's sentences as too lenient, posner's language will be all over my brief.

Posted by: wheeler | Oct 20, 2006 6:04:19 PM

I wonder what he was thinking. It is very simple: he does not have any idea what the legal definition of “frivolous” means. He just seems to delight in bashing attorneys for defendants because he has absolutely no experience representing people (government work does not count.) And, quite frankly, you are not a real lawyer until you represent someone where there is a real chance that whatever judgement or decree you secure might never be enforced by the courts (as is the case, it seems with Booker). So, instead of actually trying to understand what the defendant is complaining of, he bashes the attorney.

What is particularly vexing is his suggestion that the attorney should have filed an Anders brief. Again, Posner was never a real lawyer, but somehow he thinks that he knows enough to explain when there are absolutely no clorable claims.

Posted by: S.cotus | Oct 23, 2006 10:31:00 AM

Could Posner be trying to goad the Supreme Court into granting cert on the issue of "reasonableness" review? At a defendant's expense, of course.

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