« First Circuit reverses another below guideline sentence | Main | Sixth Circuit reverses another below-guideline sentence »

August 8, 2007

Seventh Circuit reverses within-guideline sentence on procedural grounds

Covering a number of important issues, the Seventh Circuit yesterday in US v. Schmitt, No. 06-2207 (7th Cir. Aug. 7, 2007) (available here), reversed a within-guideline sentence while also rejecting state-federal sentencing disparity as a basis for a variance.  Here is the opinion's lengthy first paragraph:

William Schmitt pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). Everyone agreed that, if the Sentencing Guidelines were to be followed, his sentence would fall between 63 and 78 months’ imprisonment.  Schmitt, however, argued that the only reasonable sentence for him would be below that range.  At his sentencing hearing, he showed convincingly that the overwhelming majority of defendants charged with the same crime in the state courts covering the same area as the Eastern District of Wisconsin received sentences far lower than 63 months. Indeed, only nine of 104 defendants sentenced in the previous five years in those counties received any prison time at all. Schmitt argued to the district court that it should take this evidence into account and sentence him below the guideline minimum.  The district judge disagreed and imposed a guideline sentence of 63 months. Schmitt appeals his sentence, arguing that 18 U.S.C. § 3553(a)(6) requires district courts to consider the disparity between state and federal sentences in choosing a sentence.  He also asserts that the district court erroneously believed that the guidelines are mandatory in cases involving child pornography and accordingly afforded too much weight to the guidelines in this case.  We agree with Schmitt in part.  Although the district court correctly rejected Schmitt’s argument about federal/state disparities, we cannot be confident that it approached the guidelines in the way that United States v. Booker, 543 U.S. 220 (2005), and now Rita v. United States, 127 S. Ct. 2456 (2007), require.  We therefore vacate the sentence and remand for resentencing.

August 8, 2007 at 10:58 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Seventh Circuit reverses within-guideline sentence on procedural grounds:


It seems that the courts analysis ignores that a state legislature's decision about how to punish a certain crime could inform the court about what kind of sentence is sufficient under some of the factors. In particular if 3553(a)(6) is read to refer only to federal sentencing disparities, it seems like it would be in conflict with 3553(a)(2)(A). How does subjecting a person to a much harsher sentence than co-defendants engaged in the exact same conduct recieved in state court promote respect for the law if the sole reason is to prevent federal sentecing disparities?

Posted by: KRG | Aug 8, 2007 2:39:02 PM

I don’t really know where all this “respect for the law” stuff is coming from. But, I should note that the First Circuit almost touched on this issue some time ago – citing DB and my blogs.
See here.

Posted by: S.cotus | Aug 8, 2007 4:18:15 PM

S.cotus, KRG gave you a citation: 3553(a)(2)(A).

Posted by: | Aug 8, 2007 7:22:11 PM

I know it is in 3553, but I don't know where Congress is getting it from.

Posted by: S.cotus | Aug 9, 2007 8:52:15 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB