Reasonable Case Analysis

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On numerous occasions, the court has affirmed sentences within the prescribed guideline range, despite little or even no discussion by the district court of any factors other than those that resulted in that guideline range. U.S. v. Dean, 414 F.3d 725 (7th Cir. 2005); U.S. v. George, 403 F.3d 470 (7th Cir. 2005); U.S. v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005); U.S. v. Alburay, 415 F.3d 782 (7th Cir. 2005).

In contrast, in the case at bar, the court never even gave lip service to the rule that a sentence imposed within a properly calculated Guidelines range is presumptively reasonable. U.S. v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).

Since the court did not explicitly address whether the sentence was reasonable or not, however, that omission is not as remarkable as it could be.

Nevertheless, in the only other case in which the court has vacated a sentence because the district court did not sufficiently explain its choice of sentence, U.S. v. Castro-Juarez, 425 F.3d 430, 433 (7th Cir. 2005), the court began its analysis by setting forth that presumption immediately.

The decision in the case at bar also goes further than Castro-Juarez, because the sentence in that case was in excess of the guideline range, while Cunningham’s sentence was at the bottom of the prescribed range.

The question for defense attorneys is how to fit cases into the framework of this case, rather than Mykytiuk.

First, at sentencing, put the court on notice that you consider a guideline sentence unreasonable. The court specifically stated that, if this is done, then a guideline sentence, imposed with no individual discussion of the defendant’s particular circumstances, will only be affirmed if the record supplies the court with assurance that the judge has given meaningful consideration to the 18 U.S.C. 3553(a) factors.

Second, upon appeal, make two separate arguments: (1) iterate the argument made to the district court that a guideline sentence is unreasonable; and (2) argue (as the court found here) that the district court failed to adequately explain why a guidelines sentence is reasonable.

Had the court outright held this sentence unreasonable, it would have been on solid ground. However, it appears that the court is leery of usurping the district court’s role, and defense counsel should give the court an alternative basis for vacating unreasonable sentences.

Third, emphasize the strength of the argument, using language to the effect that, had the district court given “meaningful consideration” to whatever factor makes a guideline sentence unreasonable, the district court “could” have found a guideline sentence unreasonable.

This appears to be consistent with the standard set forth in Rodriguez-Alvarez: “When a district court does not make a finding of fact regarding a position advanced by a party during a post-Booker sentencing, this Court will assume, for the purposes of the reasonableness analysis, that it considered the submission in a light favorable to the offering party. If it can be effectively argued that the sentence was unreasonable, given favorable implicit factual determinations, the case will be remanded for the trial court to make explicit factual findings (emphasis added).” 425 F.3d at 1048.

In the case at bar, the court did not cite this passage from Rodriguez-Alvarez, but employed similar terminology, repeatedly alluding to the strength of Cunningham’s arguments:

“Cunningham possibly has a good argument that the court ignored (the psychiatric history) and the government has a poor (vague, belated, unsubstantiated) argument to which the judge gave substantial weight (Cunningham’s alleged failure to cooperate”;

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“[The government’s argument] would be a good argument if [Cunningham’s] circumstances made only a weak case for a sentence below the guidelines range. …

[A]rguments clearly without merit can, and for the sake of judicial economy should, be passed over in silence”; and

“[The judge] passed over in silence the principal argument made by the defendant even though the argument was not so weak as not to merit discussion” (emphases added).

It would be wisest on appeal to use both the terminology in the case at bar (emphasizing the strength of the argument), and in the second sentence of the above passage from Rodriguez-Alvarez (“it can be effectively argued that the sentence was unreasonable, given favorable implicit factual determinations”).

– David Ziemer

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David Ziemer can be reached by email.