Booker Case Analysis

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Each of the four cases is noteworthy, if not groundbreaking, and will be cited in future cases for one reason or another, requiring attorneys to be familiar with them.

Cunningham is the most straightforward. From the beginning of the Seventh Circuit’s post-Booker jurisprudence, U.S. v. Lee, 399 F.3d 864, 867 (7th Cir. 2005), the court has stated that there will be instances in which it will not issue any remand to the trial level, because it is so clear from the record that the district court would not impose a lesser sentence.

Cunningham’s case is the first the court has put into that category, however, and for now, at least, is the only example that we have of a case in which plain error review does not require limited remand.

Thus, Cunningham is also the first case in which the Seventh Circuit reviewed a sentence under the Booker "reasonableness" standard.

This aspect of the court’s decision is noteworthy only for its paucity. The court merely noted the reasons the district judge for the upward departure, and the resulting sentence, and stated, "Based on our review of the record, we refuse to hold that this decision by the judge was unreasonable."

One could read this to mean that the court intends to give great deference to sentencing courts when it reviews sentences under the reasonableness standard. However, it would be just as sound to conclude nothing of the sort — that this particular defendant was just a very bad man, and there is little justification required to conclude that there was nothing unreasonable in sentencing him to prison for a very long time.

The Miller case must be noted in any future case in which the judge adjusts the sentence upward because the defendant committed perjury. The court’s discussion of scienter suggests that, while a guilty verdict on the underlying offense can be interpreted as a finding that the defendant also perjured himself, and thus a finding beyond a reasonable doubt that the defendant obstructed justice, the court should carefully examine the scope of the verdict to ensure that is the case.

The guilty verdict and the truthfulness of the defendant’s testimony must be mutually exclusive, such that a finding of perjury necessarily follows from the verdict.

The final two cases, Lewis and Skoczen are the troublesome ones, in that they may not be reconcilable.

In Lewis, the court wrote, in finding no Sixth Amendment violation: "Criminal history is all about prior convictions; its ascertainment therefore is excluded by Booker’s own formulation and governed by Almendarez-Torres v. United States., 523 U.S. 224 (1998)."

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In Skoczen, however, the court wrote, "Although the court had no occasion in Booker to focus on the calculation of criminal history under the guidelines, its remedial opinion in Booker did not distinguish between calculations related to offense level and calculations related to criminal history. Instead, it chose to strike down the underlying statutory provisions that made the guidelines mandatory, 18 U.S.C. secs. 3553(b)(1) and 3742(e), rejecting the government’s arguments for different intermediate solutions. This indicates to us that the assessment of criminal history for purposes of applying the Guidelines (as opposed to a statutory sentencing range) is also something that falls within the Booker rule."

If these two statements can be reconciled, it is not apparent how. The only notable difference is that, in Lewis, the nature of the prior conviction was used to increase the defendant’s offense level, while in Skoczen, the nature of the prior conviction was used to increase his Criminal History Category.

Why that would make a difference, though, is not clear. If the two were to be treated differently, it would seem the opposite would be appropriate; calculation of Criminal History Category would not be within the Booker rule, while findings that increase offense level would be governed by Booker.

– David Ziemer

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David Ziemer can be reached by email.