Seventh Circuit reverses below guideline sentence (without mention of Rita)

I have already noticed in decisions from the Sixth and Eighth Circuits a few brief references to Rita in standard opinions affirming within-guideline sentences.  Consequently, I am somewhat surprised, and certainly disappointed, that the Seventh Circuit's significant sentencing ruling today in US v. Goldberg, No. 07-1393 (7th Cir. June 27, 2007) (available here), lack any mention of Rita.

The Goldberg decision, which was authored by Judge Posner, reverses a below-guideline sentence of just one day of imprisonment for a seemingly troubled young man convicted of downloading and sharing child porn.  Here are a couple key passages from Goldberg:

A prison sentence of one day for a crime that Congress and the American public consider grave, in circumstances that enhance the gravity (we refer to the character of some of the images), committed by a convicted drug offender, does not give due weight to the "nature and circumstances of the offense" and the "history and characteristics of the defendant." It does not "reflect the seriousness of the offense," "promote respect for the law," or "provide just punishment for the offense."  It does not "afford adequate deterrence to criminal conduct."  And it creates an unwarranted sentence disparity, since similarly situated defendants are punished with substantial prison sentences....

We do not rule that a sentence below a properly calculated guidelines range would have been improper in this case.  The guidelines are merely advisory, and the statutory sentencing factors (a laundry list of incommensurables which guides consideration but does not dictate the sentence or even the sentencing range) leave plenty of discretion to the sentencing judge. But that discretion was abused in this case, and the judgment is therefore reversed and the case remanded for resentencing.

I find most of the Seventh Circuit's work in Goldberg to be well-founded.  But I am troubled a bit by the timing (especially in light of some broad dicta in Goldberg): the case was apparently submitted for decision less than a month ago and the panel obviously rushed out an opinion.  But, with the Rita ruling released last week, I think Judge Posner et al. should have taken a little extra time to see if Rita ought to impact its dicta and dictates (even if not its unreasonableness conclusion) in Goldberg.

UPDATE:  In a similar (and somewhat more comical) vein, the Southern District of Florida Blog notes here provides an account of an Eleventh Circuit ruling that it similarly behind the current sentencing times:

Today the Eleventh Circuit, in an unpublished opinion, affirmed a sentence [in which the defendant argued the Court] should wait until the Supreme Court decided Rita before issuing an opinion.  The 11th Circuit said that wasn't necessary -- it need not wait on the High Court to issue an opinion in Rita because it wouldn't affect the outcome.   Fair enough..... except one thing: the Supreme Court decided Rita last Thursday and Aguirre Lopez came out today.