01-2720 U.S. v. Cross

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“[S]taring at a criminal with numerous opportunities for but no record of rehabilitation, Judge Kocoras, a most capable veteran jurist, simply imposed the longest sentence statutorily possible in order to achieve the maximum incapacitation possible. Instead of trying to translate this into guideline gobbledygook about offense levels, he commendably admitted:

‘And, so, while I am told by the guideline manuals and the Court of Appeals where, if I were to depart upward, to find some measure in the guidelines in order to find the number, do you want to know the truth of it? And I will state it on the record. There is no number that the guidelines supply me that brings me some measure of reason.'”

“Judge Kocoras’s statements make clear that he was not tailoring the departure by increasing the offense level in response to the extra criminal history points but, rather, reaching a result dictated by his stated sentencing goal and then referencing, at defense counsel’s request, the offense level and sentencing range housing that number.”

“Cross describes this as just the sort of ‘visceral’ sentencing that the guidelines did away with. Visceral is an antonym of rational, and we don’t think that sentencing a practiced recidivist to the statutory maximum is a result to which reason could not lead a judge in this case. But Cross’s larger argument stands: on some points, the guidelines replace the district judge’s reasoning with their own, and this is such a case. The way in which Judge Kocoras translated his conclusions about Cross’s past criminal conduct and future likelihood of wrongdoing into a sentence ran afoul of sec.4A1.3 and, therefore, was an abuse of discretion. Although we sympathize with the judge and can understand his disgust with Cross, the guidelines-perhaps unwisely- cabin a judge’s sentencing sensibilities in cases such as this. And so we conclude that the case must be remanded for resentencing in conformity with the departure approach called for in sec.4A1.3 as we have interpreted that provision.”

Reversed.

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Evans, J.