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August 19, 2008

Two for Tuesday from the Seventh Circuit on sentencing

The Seventh Circuit has handed down two notable and lengthy sentencing rulings today:

Though both rulings are meaty and important, the Carter case is the must-read of the pair.  In Carter, the panel affirm a below-guideline sentence of 24 months' imprisonment as reasonable despite an applicable advisory guidelines range of 87 to 108 months’ imprisonment. Here are the panel's concluding sentiments in Carter:

The record makes clear that the district court did not select the sentence arbitrarily, base the sentence on impermissible factors, fail to consider pertinent section 3553(a) factors or give an unreasonable amount of weight to any pertinent factor.  Its explanation for its sentence was sufficient to allow for meaningful appellate review and to promote the perception of fair sentencing and its reasoning adequately justified the extent of the variance from the advisory guidelines range.  See Omole, 523 F.3d at 697; see also Gall, 128 S. Ct. at 597.  We might have adhered to the guidelines or imposed a somewhat harsher sentence had we been sitting as district judges. See Gall, 128 S. Ct. at 597.  Our review is not de novo, however.  Our authority is simply to determine if the sentence is legal and, in the circumstances of the case, reasonable in light of the statutory mandate contained in 18 U.S.C. § 3553(a).  Given those limitations on our authority, the sentence of the district court must stand.

August 19, 2008 at 02:29 PM | Permalink


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And kudos to another court that got it right, are you paying attention Judge Sutton?

Posted by: Daniel | Aug 19, 2008 2:52:05 PM

One thing of note -- the Fifth said the judge did not follow its previous rule that when a judge decides to do something prohibited by the guidelines, he must acknowledge the guideline provision prohibiting what he did, here, the provision prohibiting probation for a defendant whoses guideline range is in Zone D. The Fifth indicated it was reconsidering that rule in light of Rita, but it did not need to decide because this was plain error review.

The provision prohibiting probation in Zone D comes in under § 3553(a)(4) (“kinds of sentence . . established [by] the guidelines”).

In Gall, the Court rejected the Eighth Circuit’s conclusion that probation “lies outside the range of choice dictated by the facts of this case” because “§ 3553(a)(3) [“kinds of sentences available”] directs the judge to consider sentences other than imprisonment.” 127 S. Ct. at 602 & n.11.

This isn't mentioned in Duhon, but 3553(a)(3) and this part of Gall are obviously solid authority for the proposition that the judge MUST consider sentences other than prison, even when the guidelines say otherwise.

Posted by: abe | Aug 19, 2008 6:26:24 PM

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