One Day Case Analysis

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The court relies on its opinion in U.S. v. Wallace, 458 F.3d 606 (7th Cir. 2006), in striking down the one-day sentence, but the opinion in this case actually is much broader.

In Wallace, despite a guideline range of 24-30 months, the defendant received no jail time either. In Wallace, however, the Seventh Circuit gave a more individualized reason for holding the sentence unreasonable.

The district court in Wallace found that the actual loss was far less than the intended loss, and used that as a basis for the lower sentence. The Seventh Circuit found that this basis contravenes the guidelines, and thus, was an unacceptable reason.

In the case at bar, the court recognized the limited nature of its holding in Wallace, observing, “we have gone only so far as to vacate sentences where the district court disagreed with judgments firmly made by the Sentencing Commission.”

Here, in contrast, the district court’s sentence cannot be classified as a disagreement with policy.

Because of the specific error in Wallace, it was premature after that case was decided to conclude that one-day sentences for white-collar criminals were per se (or nearly per se) unreasonable.

In light of this decision, we can reach that conclusion, because this case will be nearly impossible to distinguish in future cases.

The main reason given for the one-day sentence was Repking’s substantial charitable activities. The court rejected this outright, citing the Third Circuit’s observation that it is “usual and ordinary” for high-ranking corporate executives to be leaders in community charities, civic organizations, and church efforts. U.S. v. Cooper, 394 F.3d 172, 176-77 (3d Cir. 2005).

The court then went even further, and called charitable works by corporate executives consistent with their corporate “business development plans.”

These observations may be cynical, but they would also be astute if they weren’t so self-evident. What corporation doesn’t expect its executives to be active in the community? The decision guts the best argument that most seemingly-upright corporate citizens have for leniency.

The case will also be difficult to distinguish, even when a white-collar criminal’s charitable activities truly are exceptional. At no point in this opinion does the court mention the extent of Repking’s charitable activities.

Thus, there is no baseline that a defense attorney can point to, and say, “but in my client’s case, the defendant did much more than Repking did.”

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The decision also effectively eliminates another argument that white-collar defendants can make for leniency — having already made restitution. Most criminals can’t make restitution before sentencing because they don’t have it; some white-collar criminals do have it, pay it pre-sentencing, and hope it gets them a break.

The court kills this plan with little discussion: “he would have been required to do so anyway (cites omitted).”

In short, Wallace could be distinguished by many white-collar criminals, because of the specific decision by the district court in that case which the court of appeals characterized as a policy disagreement with the guidelines; the case at bar, in contrast, likely means the end of one-day sentences for white collar criminals in the Seventh Circuit.

The only avenue out that the court leaves is so narrow that the court might as well have erected a per se bar: “we leave open the possibility that a one-day sentence of imprisonment might be justifiable for a defendant who rivals Robin Hood; but Repking, a millionaire who stole for himself and his friends, is not that defendant.”

– David Ziemer

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David Ziemer can be reached by email.