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August 3, 2009

Judge Posner talks through some post-Kimbrough concerns for the Seventh Circuit

The Seventh Circuit has this intriguing little opinion today which purports "to flag a growing problem created by the Booker decision, which in the name of the Sixth Amendment demoted the federal sentencing guidelines to advisory status."  The ruling in US v. Aguilar-Huerta, No. 08-2505 (7th Cir. Aug. 3, 2009) (available here), comes from the pen of Judge Posner, and here are a few snippets (with cites omitted and the emphasis from the original):

A sentencing judge is free, as we said, to reject a guideline as inconsistent with his own penal theories; and rejecting a guideline as lacking a basis in data, experience, or expertise would thus be proper.  But we do not think a judge is required to consider, not a nonfrivolous argument that a guideline produces an unsound sentence in the particular circumstances of the case, but an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.  He should not have to delve into the history of a guideline so that he can satisfy himself that the process that produced it was adequate to produce a good guideline. For if he is required to do that, sentencing hearings will become unmanageable, as the focus shifts from the defendant’s conduct to the “legislative” history of the guidelines.

Moreover, while if a defendant makes a nonfrivolous argument that a guideline is invalid the judge should consider the argument, there is no harm done if he doesn’t consider it because the defendant can renew the argument on appeal; validity issues are issues of law.

August 3, 2009 at 12:52 PM | Permalink


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Posner's dismissal of the issue concerning a district court's addressing a defendant's argument is weak. I agree that "the defendant can renew the argument on appeal" and that "validity issues are issues of law." However, what the cursory explanation fails to recognize is the different standard of review. In the district court, the judge is determining de novo whether to follow the Guideline's policy. In the appellate court, the panel is determining whether the district court abused its discretion in deciding to follow/not follow the advice of the Guideline.

In this case, it would be quite plausible that, if required to address the issue, one district court could find the 16-level enhancement to be applicable and another district court to exercise its discretion and not apply the 16-level enhancement. Yet, upon review of their individual decisions, neither district court is found to have abused their discretion.

Posner addresses the defendant's argument that he "does not argue that the 16-level-increase guideline is invalid, but only that the district judge, as a matter of sentencing discretion, should not apply it—ever" by saying there is no difference between the two requests. This is incorrect. What Posner’s response fails to recognize here is the different sentencing actors.

There is a very significant "space" between an appellate court "invalidating a guideline" (which is how the 7th Cir. mis-characterized the defendant’s argument) and a district court "refusing ever to apply it because it’s no good" (which is what the defendant was actually arguing).

Posted by: DEJ | Aug 3, 2009 4:33:25 PM

The use of three negatives in a sentence violates the defendant's procedural due process right to notice, and to legality. I have no idea what the judge is trying to say.

However, here is the interest in this passage. "...and rejecting a guideline as lacking a basis in data, experience, or expertise would thus be proper."

Is the judge holding that empirical evidence, even if anecdotal and personal, is required to support the validity of a guideline? That has not been the case in the past.

Posted by: Supremacy Claus | Aug 3, 2009 5:13:45 PM

I am a fan of Posner. In his Law and Economics book, he alludes to rent seeking. He has a clue. He misses the supernatural and unlawful core doctrines. He is more exasperating because he is so bright, and comes close to overcoming the indoctrination and seeing what is self-evident to the average 10th grader.

Posted by: Supremacy Claus | Aug 3, 2009 5:55:55 PM

Ponser. Bright.

Now there is an oxymoron in the English language.

Maybe you are talking about the color of his skin?

Posted by: Daniel | Aug 3, 2009 6:57:10 PM

Although I disagree with much of what Posner says in his opinions, I do think he is smart, very smart. If I were like the moron known on this blog as federalist, that should make me think Posner is a moron. But, thank God, I'm not like federalist.

Posted by: federalist is a moron | Aug 3, 2009 7:11:40 PM

Posner's conclusion that Booker, Gall, Kimbrough, called for "robust" appellate review runs counter to all three decisions, and seems uncharacteristically untethered to the law for this jurist. The prosecutors sitting on the Eighth Circuit and others have claimed and applied seraching appellate review of non-guidelines sentences because they want any excuse to give everyone more time -- hence, the oxymoronic non-deferential abuse of discretion appellate review that Gall Kimbrough and Spears have been three strikes against. But for Posner to make such an assertion is troubling.

Posted by: FW | Aug 4, 2009 11:54:44 AM

It's interesting to look at the language that Judge Posner uses to describe the Guidelines. First, he talks about Booker having "demoted" the Guidelines. This certainly suggests that he thinks the Guidelines warrant better treatment than that. He then goes on to be critical about challenges that expose the lack of legitimate basis for a particular Guideline. So he's going to be upset when we show the emperor has no clothes, and he is going to insist that we still treat the emperor as clothed?

The reality is that the only legimitacy that the Guidelines has is that they have been in use for 22 years. And even that legitimacy is one of perspective. Judge Posner sees them as worthy of support. Judge Young, in U.S. v. Kandirakis, notes that "for seventeen years federal courts had been sentencing offenders unconstitutionally."

Prior to Booker we were required to take the Guideines as legitimate. We were not allowed to question whether or not they had a legitimate basis. Booker changed that. Thanks to the work of the Sentencing Counsel of the Federal Defenders and their "de-constructing the Guidelines" work, we now know that the emperor has no clothes. The only question now is whether we will say, "all hail the naked emperor!" or put some energy into making sentencing in federal court truly just.

Posted by: Sumter L. Camp | Aug 4, 2009 1:46:13 PM

The one valid purpose of government is safety. Fail at that, there is no point to government. It takes 10 years for a law or a change to take effect at street level. If the crime rates rises over the next 5 years, this series of decisions will be judged harshly, and should be reversed, if not by the Supreme Court, then by Congress.

The criminal law is for safety. It is not for the amusement, the enrichment, nor the empowerment of lawyers. The Supreme Court had no legal, empirical, nor even logical basis to strike down the guidelines, just as they had such a positive impact on the crime rate. Scalia quoted a bewigged foreign weasel in Blakely. This weasel voted for the Stamp Act, and tried our beloved patriots in absentia. It was not just foreign law, Scalia used as a false justification. It was foreign law of a mortal enemy of the United States.

Posted by: Supremacy Claus | Aug 4, 2009 3:00:25 PM

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