Sentencing Case Analysis

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The court’s affirmance of a 37-month sentence, in the low end of a properly calculated guideline range, would not normally merit publication by the court, and could have been disposed of with summary disposition, but the court added several features that make it noteworthy.

First is the citation to U.S. v. Demaree, 459 F.3d 791 (7th Cir. 2006)(rehng. and en banc denied, Sept. 13, 2006), and the court’s discussion of discretion — stating that it is permissible for a court to begin with the guidelines, and then adjust based on criteria in 18 U.S.C. 3553(a)(3) — without any reference to U.S. v. Hankton, 463 F.3d 626 (7th Cir. 2006)(rehng. denied, Nov. 7, 2006).

In Hankton, a different panel of the court held that the presumption that a guideline sentence is reasonable applies both on appeal, and at sentencing. In Demaree, and in the case at bar, the court only recognizes such a presumption on appeal.

This follows a pattern, in which the court cites only one or the other, but never both, without attempting to reconcile the two. See U.S. v. Wurzinger, 467 F.3d 549 (7th Cir. 2006)(citing only Hankton).

The limbo will be relatively short-lived, however, for the U.S. Supreme Court will be addressing the issue in Rita v. U.S., cert. granted, No. 06-5754 (U.S. Nov. 3, 2006). In Rita, the court will resolve an intercircuit split over whether there is a presumption that a guideline sentence is reasonable or not.

Furthermore, the decision makes clear that the court has no intention of waiting until Rita is decided by the Supreme Court, but will proceed as before. As a result, there is no point for attorneys to move the court to hold any appeal in abeyance, pending resolution of the issue in Rita.

Also noteworthy in this case is the court’s labeling the defendant a “three-time loser” and a “career criminal.” His criminal history consists of smuggling marijuana in 1975, mere possession in 1996, and then illegally reentering the country after deportation in 1998, and working here illegally ever since (the court was able to determine from employment records that he returned almost immediately after deportation).

Admittedly, illegal reentry is a continuing offense, so he has been engaged in illegal activity continually since 1998, just by being, and working, in the United States. But it is hardly the record of a “career criminal”; the average Milwaukee burglar likely commits more crimes in a week.

The classification is problematic, because, if this is the standard, nearly every defendant who appears in federal court, and has any prior record, is a “career criminal.” It will be difficult for defense attorneys to argue that their clients are generally “law-abiding” in the face of this precedent labeling a defendant such as Gama-Gonzalez a “career criminal.”

Finally, the opinion is noteworthy for its observation that under states’ three-strike laws, he could be imprisoned for 25 years or more for a third felony, and therefore, his 37 month sentence is “comparatively modest.”

A number of courts have held that disparity between a federal guideline sentence, and what a defendant would receive in state court for the same conduct, is not grounds for a below-guideline sentence. U.S. v. Clark, 434 F.3d 684, 686-87 (4th Cir. 2006); U.S. v. Branson, 463 F.3d 1110, 1112-13 (10th Cir. 2006); U.S. v. Jeremiah, 446 F.3d 805, 808 (8th Cir. 2006).

In contrast, in U.S. v. Winters, 416 F.3d 856 (8th Cir. 2005), the Eighth Circuit affirmed an above-guideline sentence, although one of the factors cited by the district court was that the defendant would have faced a higher sentence under state law (the crime occurred in Indian Country), despite a dissent that contended that this is not a valid consideration. Winters, 416 F.3d at 863 (Heaney, J., dissenting).

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In the case at bar, the court only uses reference to state court punishments to hold that the sentence is not unreasonable. Nevertheless, it opens the door for an argument that a defendant should receive a below-guideline sentence because the conduct would be punished much less severely in state court (or an above-guideline sentence, if the opposite is true).

Ho
wever, given prior Seventh Circuit precedent, defense attorneys are unlikely to succeed on an argument that, because of a disparity between a state and federal sentence for the same conduct, a guideline sentence is unreasonable, relying on 18 U.S.C. 3553(a)(6). A more plausible argument would be that the disparity is indicative that a below-guideline sentence may be sufficient “to afford adequate deterrence to criminal conduct.” 18 U.S.C. 3553(a)(2)(B).

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David Ziemer can be reached by email.