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June 27, 2007

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.

June 27, 2007 at 11:41 AM | Permalink


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This is a post-Rita sentencing opinion so How Appealing and Sentencing Law Policy are, of course, covering the case. These are Professor Berman's comments:I find most of the Seventh Circuit's work in Goldberg to be well-founded. But I am troubled [Read More]

Tracked on Jun 27, 2007 11:06:35 PM


Abuse of discretion standard = reasonableness review?

Posted by: SPD | Jun 27, 2007 11:48:31 AM

SPD - In short, yes. Check out Justice Stevens' (controlling?) concurrence in Rita: "Simply stated, Booker replaced the de novo standard of
review required by 18 U. S. C. §3742(e) with an abuse-of-discretion standard that we called 'reasonableness' review."

That said, and despite Prof. Berman's balanced account of the Seventh Circuit decision, it sure seems to me that the panel here reviewed the sentencing de novo. Judge Posner essentially disagreed with the assessments made by the district court judge, and took the judge to task for certain imprecise (and possibly overbroad) statements that she made during the sentencing hearing. That the appellate court would have done things differently or reached a different result, however, does not mean that the lower court abused its discretion or, in post-Booker parlance, issued an unreasonable sentence. If I were defense counsel, I would consider a cert petition and hope for a GVR in light of Gall.

Posted by: LT | Jun 27, 2007 12:50:25 PM

See also the majority opinion at page 11: "Given our explanation in Booker that appellate 'reasonableness' review merely asks whether the trial court abused its discretion ...."

Posted by: | Jun 27, 2007 1:11:49 PM

Dicta in a Posner opinion? That's a first.

Posted by: | Jun 27, 2007 4:29:59 PM

One month for a Posner opinion is far from "rushed out"; it's about the longest one ever takes.

Posted by: clerk | Jun 27, 2007 4:52:09 PM

Reasonableness review = abuse of discretion +, despite Stevens' long digression on the Koon, etc... A return to garden variety abuse of discretion would bring us back to the pre-SRA standard, which is not what Booker envisions. Booker is careful to emphasize that unreasonableness review will play a central role in advancing Congress’s original aim in enacting the SRA because it will “tend to iron out sentencing differences”.

Posted by: | Jun 27, 2007 5:01:43 PM

I don't know...I'm on the defense side, but there were multiple problems with that sentence. For example, the judge insisted the guy was not a pedophile but she also fully credited a psychologist's report that flatly stated he was a pedophile. He received one day of imprisonment, but ten years of supervised release for rehabilitation (but not, apparently, from having an attraction to adolescents). The photos included photos of toddlers being penetrated by adults, but the sado-masochism cross-reference was not applied. And the guy's guidelines range was lower than the defendant from United States v. Grinbergs, 470 F.3d 758 (8th Cir. 2006). Grinbergs' sentence was one year and one day, and it was reversed by the Eighth Circuit as unreasonable. I actually thought Gribergs, skimming through it, was not really applying abuse of discretion, but I think the Seventh Circuit was here. There were just a lot of things that did not make sense from the perspective of the guidelines or the relevant sentencing factors.

Posted by: Alec | Jun 27, 2007 7:45:36 PM

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