Seventh Circuit panel affirms above-guideline drug sentence ... with Judge Posner suggesting USSC involvement would be better than a sentencing "hunch"

An otherwise little and unremarkable sentencing appeal became blog-worthy because of Judge Posner's provocative opinion for the court in US v. Gibbs, No. 16-1747 (7th Cir. Jan. 6, 2017) (available here). Here is some background and the blog-notable aspect of Judge Posner's opinion:

The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216‐month sentence ... and that was the sentence that the district judge imposed....

The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. §] 3553(a) [sentencing] factors.”  He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law‐abiding person.”....

Neither the government, in recommending a 216‐month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the defendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range.  Judging from the government’s brief and the judge’s sentencing statement, both the prosecution and the judge based the 216‐month sentence (proposed by the government, imposed by the judge) on a hunch.  As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sentence within the statutory range, and a federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory ... the sentence must be affirmed.

Some consideration, however, should be given to the possibility of basing a prison sentence — at least a very long one (and an 18‐year sentence is very long) — on something other than a hunch.  The work of the U.S. Sentencing Commission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropriateness in particular cases of all the possible sentencing points in the statutory sentencing range, including points that fall outside the guideline sentencing range.  In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range.  The Commission might for example take a close look at the government’s suggested 216‐month sentence in this case and the arguments the government gives for it, and conclude that maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range.  The defense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special circumstances of this case that that was a plausible alternative to a sentence in the guideline range — or might explain why it was not.  Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource.

The Judge Posner's opinion nominally represents the opinion of the Seventh Circuit, the other two judges on the panel (Judges Kanne and Sykes) wrote separate concurring opinions (and Judge Sykes opinion is only concurring in the judgment). Judge Kanne does join Judge Posner's opinion, but his separate opinion captures some aspects of my reactions to what Judge Posner suggests:

I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court.