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December 5, 2006

Seventh Circuit continues reasonableness ways

In two opinions today, the Seventh Circuit continues the circuits' pattern of affirming nearly every within- and above-guideline sentence appealed by defendants.  In US v. Orozco-Vasquez, No. 05-3920 (7th Cir. Dec. 5, 2006) (available here), Judge Sykes affirms a sentence "42 months more than the high end of the advisory sentencing guidelines range of 63-78 months."  In US v. Gama-Gonzalez, No. 06-1965 (7th Cir. Dec. 5, 2006) (available here), Judge Easterbrook affirms a within-guideline sentence and speaks at length about reasonableness review. 

In part because Judge Easterbrook is in fine form, Gama-Gonzalez merits quoting at some length (with cites omitted and italics in original):

To say that a sentence within the range presumptively is reasonable is not to say that district judges ought to impose sentences within the range.  It is only to say that, if the district judge does use the Guidelines, then the sentence is unlikely to be problematic.

United States v. Booker, 543 U.S. 220 (2005), increases district judges' discretion.  It will be the rare sentence indeed that was required under the Guidelines before Booker but forbidden afterward, when discretion has gone up rather than down.  One permissible use of discretion is to start with the Guidelines' framework, which is designed to curtail unjustified disparity in sentences — for avoiding unjustified disparity is one of the statutory objectives.  Likewise the Guidelines recognize other statutory criteria, such as choosing punishment that achieves an appropriate level of deterrence and desert.  When saying that sentences within the Guidelines are presumptively reasonable, we mean no more than the modest proposition that district judges generally possess the discretion under §3553(a) and Booker to follow the Guidelines, if they so choose, without acting un-reasonably. It is accordingly unnecessary to hold this appeal, and others like it, for the Supreme Court's decision in Rita v. United States, cert. granted, No. 06-5754 (U.S. Nov. 3, 2006).

A presumptively reasonable sentence is not a conclusively reasonable one, for the Guidelines may omit some factor to which §3553(a) or a sound exercise of discretion gives weight....  A judge must deal with serious arguments for lower sentences, but Gama-Gonzalez's argument was insubstantial.  Many states, using three-strikes laws, would imprison him for 25 years or more even though none of his felonies was violent.  His federal sentence of three years and one month for a third felony conviction is comparatively modest.

Among other flourishes, Judge Easterbrook references the comparative severity of state sentencing to support the Seventh Circuit's reasonableness finding in Gama-Gonzalez.  I hope the Seventh Circuit might likewise approve whenever a district judge (like Judge Adelman, for example) references the comparative leniency of state sentencing (on minor crack offenses, for example) to support the reasonableness of a below-guideline sentence. 

Also, as state law gurus can confirm, I believe only in California, and certainly not in "many states," would an offender like Gama-Gonzalez possibly face a sentence of 25+ years' imprisonment.  Indeed, I am pretty sure California's three-strikes laws would not be applicable to Gama-Gonzalez because his second offense involved only possesson of marijuana.  So I guess the real question is whether the Seventh Circuit would approve of a district judge mis-stating the comparative leniency of state sentencing to support its ruling.

December 5, 2006 at 03:09 PM | Permalink


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I am a senior prosecutor in California. You are correct that 3 Strikes would not apply to this defendant. Neither of his priors by themselves(conpsiracy to import MJ & possession of MJ) nor his current offense would qualify as a serious or violent felony under California law.
My thanks to you for this blog. I read it religiously along w/SCOTUSBlog & Crime & Consequences.

Posted by: Blake Gunderson | Dec 5, 2006 6:23:04 PM

In Michigan, having one prior felony, no matter how old, or what it was for, can increase the maximum sentence to 150 percent of the maximum for a first offender. If the defendant has two prior felonies (even two counts from one incident), the maximum penalty can double. If the defendant has three priors, the maximum goes to life, or to 15 years, depending on the penalty for the new offense. If the current case is a drug conviction, and the defendant has a prior drug conviction (even a misdemeanor), the maximum can double, and the minimum under the guidelines can double, too. A 25-year minimum on a third felony conviction is not unknown here. I'm a defense attorney.

Posted by: Greg Jones | Dec 6, 2006 3:31:30 PM

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