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November 7, 2006

Seventh Circuit reverses another below-guideline sentence

The Seventh Circuit today in US v. Repking, No. 06-1410 (7th Cir. Nov. 7, 2006) (available here), reversed another below-guideline sentence as unreasonable.  In Repking, a bank president faced an advisory guidelines range of 41 to 51 months' imprisonment, and a government recommendation of 24 months due to substantial assistance, but "the district court ultimately sentenced him to just one day of imprisonment, a total of three years' supervised release, and a $100,000 fine" along with an order requiring the defendant to serve "six months on home confinement and perform 900 hours of community service." 

The government appealed and here is how the Seventh Circuit concludes its extended analysis of the district court's sentencing work:

In the end, although Judge Reagan did recite and apply the § 3553(a) factors, the sentence imposed cannot stand.  The factors Judge Reagan gave the most attention to — Repking's charitable works and restitution — were overstated, and the other reasons the judge gave —including the social stigma of being a convicted felon and the bar on obtaining federal jobs — are normal incidents of committing bank fraud.  The ordinariness of Repking's case makes it more like United States v. Wallace, in which we vacated the probation-only sentence given for a defendant who faced a guidelines range of 24 to 30 months for a fraud offense that involved $400,000 of intended loss, and United States v. Crisp, in which the Eleventh Circuit held that the district court provided insufficient reasons to justify a five-hour term of imprisonment for a defendant who defrauded a small bank out of close to $500,000. See also United States v. Godding, 405 F.3d 125, 125, 127 (2d Cir. 2005) (expressing concern that oneday term of imprisonment did not reflect magnitude of theft of nearly $366,000).  As we said at oral argument, we leave open the possibility that a one-day sentence of imprisonment might be justifiable for a defendant who rivals Robin Hood; but Repking, a millionaire who stole for himself and his friends, is not that defendant.

November 7, 2006 at 01:14 PM | Permalink


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I do not understand what is "advisory" about the Guidelines. The system seems more arbitrary than ever. The term 'REASONABLE' now means whatever the United States Attorney wants it to mean.

Posted by: Stanley Feldman | Nov 7, 2006 2:26:51 PM

As most Courts of Appeals have interpreted it, "advisory" means "advice to which the sentencing cout must adhere in most circumstances." In other words, only slightly less binding than the guidelines were before Booker.

I disagree with Stanley Feldman's last sentence. The fault lies with SCOTUS for producing such a poor Booker remedial opinion.

Posted by: Marc Shepherd | Nov 7, 2006 4:17:53 PM

hey wait a minute! isn't this the same circuit that - in an above guidelines case - waxed on and on about how limited their power of review is, suggesting that sentence appeals would almost always be "frivolous?"

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