10-3097 U.S. v. Garthus

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Sentencing
Diminished capacity

A sentencing court may regard the defendant’s diminished mental capacity as an aggravating factor or a mitigating factor.

“How to choose? The sentencing guidelines do not embody a coherent penal philosophy. United States v. Blarek, 7 F. Supp. 2d 192, 203-04 (E.D.N.Y. 1998); Paul J. Hofer & Mark H. Allenbaugh, ‘The Reason behind the Rules: Finding and Using the Philosophy of the Federal Sentencing Guidelines,’ 40 Am. Crim. L. Rev. 19, 26-36 (2003). ‘The [Sentencing] Commission’s conclusion can be summarized thus: since people disagree over the aims of sentencing, it is best to have no rationale at all.’ Andrew von Hirsch, ‘Federal Sentencing Guidelines: Do They Provide Principled Guidance?,’ 27 Am. Crim. L. Rev. 367, 371 (1989). In the case of diminished capacity the guidelines have embraced a just-deserts theory; but why it has done so—why it has in this instance elevated just-deserts considerations over the interest in preventing recidivism—is not explained. In any event, under the Booker regime a sentencing judge can adopt his own penal philosophy. United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc); United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009). And so he can disregard the guidelines’ classification of diminished capacity as a mitigating factor, regard it as an aggravating factor, or regard it as a wash.”

Affirmed.

10-3097 U.S. v. Garthus

Appeal from the United States District Court for the Northern District of Illinois, Hibbler, J., Posner, J.

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