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July 9, 2008

Judge Posner (aka Hannah Remanda) finds nine things to hate about unreasonable sentence

7_thingsThe latest Miley Cyrus hit, which has a chorus focused on the "seven things I hate about you," came to mind when I saw the today's Seventh Circuit opinion in US v. Higdon, No. 07-9351 (7th Cir. July 9, 2008) (available here).  In Higdon, Judge Posner sets out a point-by-point list of the "apparent mistakes and misunderstandings by the district judge that may have been decisive in his imposing a sentence almost three times the length of the midpoint of the guidelines range (60 months versus 21 months)."  Judge Posner's list actually includes nine problems with the district court's sentencing work, and the opinion in Higdon concludes with these notable comments before ordering a remand for resentencing:

The last two mistakes or omissions, and also the first, could reflect the district judge’s possession of a personal penal philosophy at variance with the Sentencing Commission’s; and that, as we said, is permitted.  But we can have no basis for confidence in such an inference, and the other six mistakes or misunderstandings that we have identified seem unrelated to a legitimate philosophical difference.

We suggest that when a judge decides to impose an outof- guidelines sentence — whether it is above or below the guidelines range — he write out his reasons rather than relying entirely on the transcript of his oral remarks to inform the reviewing court of his grounds. The discipline of committing one’s thoughts to paper not only promotes thoughtful consideration but also creates a surer path of communication with the reviewing court.

July 9, 2008 at 03:40 PM | Permalink


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