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August 1, 2007

Seventh Circuit affirms Judge Adelman's below-guideline work

The Seventh Circuit has kick off a new month with a lengthy opinion in US v. Wachowiak, No. 06-1643 (10th Cir. Aug. 1, 2007) (available here), that affirms Sentencing Hall of Famer Judge Lynn Adelman's decision to impose a below-guideline sentence in a child porn downloading case.  Because I now have to run to share a podium with Howard Bashman, I'll let the start of the court's opinion summarize this important ruling:

Judge Adelman sentenced 24- year-old Robert Wachowiak to 70 months’ imprisonment for downloading and electronically “sharing” child pornography on his home computer.  Wachowiak’s sentence is considerably less than his advisory guidelines range of 121 to 151 months, and the government submits it is unreasonably low in light of the sentencing factors in 18 U.S.C. § 3553(a).  In addition to discounting the seriousness of Wachowiak’s offense, the government argues, the judge deviated from the sentencing guidelines on the basis of mitigating factors routinely present in child pornography possession cases or already reflected in Wachowiak’s guidelines range. A 70-month sentence, the government maintains, lies beyond the outer limit of the district court’s post-Booker sentencing discretion. We affirm.

Although lenient, this below-guidelines sentence survives review for reasonableness, a deferential standard that has both procedural and substantive aspects. See Rita v. United States, 127 S. Ct. 2456, 2465, 2468-70 (2007); United States v. Wallace, 458 F.3d 606, 609-10 (7th Cir. 2006). The government concedes that Judge Adelman explicitly considered the litany of factors specified in § 3553(a), including the nature and severity of the crime, Wachowiak’s history and characteristics, the advisory guidelines range, and the purposes of sentencing enumerated in § 3553(a)(2). The challenge mounted here is substantive, not procedural. We conclude that Judge Adelman’s reasons for selecting a 70-month sentence — Wachowiak’s “excellent” character, genuine remorse, susceptibility to treatment, low risk of recidivism, strong family support, and certain mitigating aspects of his offense — are rooted in § 3553(a), sufficiently individualized to the circumstances of this case, and generally associated with sentencing leniency.  Given the seriousness of this crime, we might not have weighed these factors so heavily, but we cannot say Wachowiak’s sentence is unreasonable.

August 1, 2007 at 01:39 PM | Permalink


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The absence of Judge Cassell from the Sentencing Hall of Fame makes me wonder if the SHF is reserved for lenient judges who write well enough and play the Booker game well enough to avoid reversal most of the time.

Judge Cassell is an excellent writer, but he's not lenient.

Posted by: | Aug 1, 2007 3:31:11 PM

Wachowiak is generally refreshing in its recognition of Rita's "hands-off" tone. However, it fails to acknowledge that Rita also declared that disagreement with the Guidelines is an acceptable basis for a non-Guidelines sentence. Wachowiak repeatedly approves of Judge Adelman's reasoning as sufficiently focused on individual characteristics, regularly intoning that to do otherwise is improper. This case is yet more evidence that the Courts of Appeal will have to be dragged kicking and screaming to Apprendi-land. Hopefully Gall and Kimbrough will finally do the trick.

Posted by: | Aug 1, 2007 4:33:53 PM

Rita also declared that disagreement with the Guidelines is an acceptable basis for a non-Guidelines sentence.


Posted by: | Aug 1, 2007 4:38:25 PM

Judge Paul Cassell is definitely in my version the Sentencing Judges Hall of Fame, although the speed with which he produces great opinions sometimes leads me to wonder whether he could be using performance-enhancing substances (like coffee or even Red Bull).

Posted by: Doug B. | Aug 1, 2007 4:41:20 PM

To the post at 3:31:11 PM, check out:

Posted by: | Aug 1, 2007 4:52:48 PM

Slip Op. at 11-12: "The sentencing judge, as a matter of process, will normally begin by considering
the presentence report and its interpretation of
the Guidelines. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, [1] perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the 'heartland' to which the Commission intends individual Guidelines to apply, [2] perhaps because the Guidelines sentence itself fails properly to reflect §3553(a) considerations, or [3] perhaps because the case warrants a different sentence regardless." (citations omitted) --N.B. reason number 2.

Slip Op. at 18: "Unless a party contests the Guidelines sentence generally under §3553(a)--that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way--or argues for departure, the judge normally need say no more."

I guess that you can ignore those parts of Rita if you want. Technically they are dicta. But if I were a bettin' man ...

Posted by: | Aug 1, 2007 4:55:10 PM

I think it is implicit in Cunningham, by the way, that any system that does not allow disagreement in principle with guidelines is unconstitutional. Justice Ginsburg's opinion plainly held that because a sentence above the middle option could only be imposed based on "facts" found by the judge, it violated Apprendi-Blakely-Booker. Justice Alito, dissenting, implicitly agreed. His sole point was that the California system was exactly like the Booker remedial system because a judge could base a higher, or lower, sentence on policy disagreements with the selection of the prescribed middle sentence. Thus, even Alito finds that under Booker, judges must have discretion to disagree with the guidelines in order for the system to be constitutional.

I think Cunningham's real holding is that any system in which a judge may differ from the specified sentence or range only by judicial fact-finding, and not through exercise of discretion to determine, de novo, the proper sentence based on the statutory sentencing principles, is unconstitutional.

Posted by: David in NY | Aug 2, 2007 11:23:48 AM

GPS tracking systems are only a small part of what it takes to keep our children safe from sexual predators. First of all, legislators need to ensure that these sex offenders cannot reside anywhere near children. Police need to spend less time hiding with their radar guns to give speeding tickets and more time monitoring areas where sex offenders reside. GPS tracking bracelets are a must! The people monitoring GPS trackers most be competent and knowledgeable.

Cutting funds to monitor sex offenders can in now way help our children

Posted by: jordan shoes 1 | Nov 29, 2010 3:03:50 AM

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