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February 3, 2012

Seventh Circuit reminds federal sentencing judge of obligation to judge at federal sentencing

The Seventh Circuit handed down an intriguing little panel opinion resolving a sentencing appeal yesterday in US v. Pennington, No. 11-1257 (7th Cir. Feb. 2, 2012) (available here). Here is how the opinion in Pennington gets started:

Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough.  The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little.  He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.”  The judge imposed the 68-month sentence suggested by the government.  Pennington appeals, challenging the procedure the judge used to reach that decision.

We vacate the sentence and remand for resentencing.  The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines.  There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.

Among other virtues, the court's opinion in Pennington has this nice passage discussing one of my favorite parts of 3553(a):

The first explanation about the negligible difference between the parties’ sentencing recommendations is troublesome for a couple of reasons. To begin, the so-called parsimony provision of § 3553(a) requires that judges “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing.  The judge need not expressly refer to that provision at sentencing,  Abebe, 651 F.3d at 656, but his explanation of the sentence must be consistent with its meaning, see Johnson, 635 F.3d at 988 n.1 (collecting cases).  By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing.  If so, the parsimony principle would ordinarily require the more lenient sentence.

February 3, 2012 at 04:28 PM | Permalink


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This entire issue is de minimus and not worthy of appellete review.

Generally, parsimony should not be used to base a decision outside a guideline range. It can be considered when pinpointing a sentence within a range.

Posted by: mjs | Feb 4, 2012 10:00:21 AM

mjs, ever been locked up for four months. if not, i'm not sure you're in the position to say its de minimis

Posted by: anon | Feb 4, 2012 12:19:21 PM

The difference between 0 and 4 months is not de minimus, however it is far from clear the difference between 68 and 64 months is anything but. What is clear is that this is not a question 0-4 months.

No I have not served custody time.

Posted by: David | Feb 4, 2012 3:27:12 PM

The judge just spoke inartfully. He could have just said something along the lines that a four-month reduction below the guidelines would not materially change the sentence, but it would create an unwarranted disparity with similarly situated defendants. Then the sentence would be "sufficient, but not greater than necessary" to accomplish the requirements of 18 USC section 3553.

Posted by: C.E. | Feb 4, 2012 3:54:11 PM

So much for the concept of "judicial economy".

I don't believe Lady Justice would have shed a tear if this sentence went undisturbed.

Posted by: mjs | Feb 4, 2012 7:12:25 PM

Do you think "judicial economy" is more important than human liberty, mjs? More broadly, on what basis do you say that "parsimony should not be used to base a decision outside a guideline range," when no such limit appears in the applicable federal statute?

For me at least, when human liberty is at issue, "close enough for government work" does not really cut it.

Posted by: Doug B. | Feb 4, 2012 7:48:08 PM

i'm with doug. i'd note that this decision suggests that the seventh circuit rightly thinks the supreme court meant what it said in glover v. u.s. about the significance of any additional prison time.

Posted by: big bad wolf | Feb 5, 2012 12:26:50 AM

Do you think judicial economy is more important than human liberty? Wow! And when did you stop beating your wife?

Certainly, there is a continuum where the scales are tipped in the favor of judicial economy. That point is subject to debate and the public fisc.

The fact remains that defense counsel did not proffer one identifiable reason why his proposed sentence satisfied 3553 (a) factors (other than parsimony). It is not sufficient for a defendant to base an objection to a sentence by simply stating that "it is enough".

Posted by: mjs | Feb 5, 2012 10:42:02 AM

I am not sure how else to understand your comments, mjs, other than the claim that four extra months in prison is not worth the judicial effort involved in this appeal. This was not a case, as I understand it, in which a lawyer failed to raise/make any valid argument and now the defendant seeks a redo on appeal. Instead, the lawyer argued for 64 months by noting, according to the opinion, that "this below-guidelines recommendation was justified by Pennington’s extraordinary acceptance of responsibility, minimal criminal history, serious mental-health issues (including depression, post-traumatic stress disorder, and bipolar disorder), and history of drug abuse. Counsel also noted the atypical nature of the crimes; for example, Pennington did not carry the firearms to intimidate but simply to show off."

Posted by: Doug B. | Feb 5, 2012 3:30:18 PM

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