Sentencing — procedural reasonableness

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — procedural reasonableness

A sentence was not procedurally unreasonable, even though the district court referred to 18 U.S.c. 3553(a) as an historical relic.

“Reyes-Medina next complains that the district court judge failed to consider his arguments made under § 3553(a)(5). That subsection requires a sentencing court to consider ‘any pertinent policy statement . . . issued by the Sentencing Commission.’ 18 U.S.C. § 3553(a)(5). At the sentencing hearing, the district court judge referred to this provision as ‘a historical relic because that was applicable only at a time when the [s]entencing [g]uidelines themselves were mandatory and, therefore, when they contain policy statements, they were considered by a different standard. That is no longer true because the whole thing is advisory.’ Reyes-Medina cries foul, arguing that, even in the post-United States v. Booker world where the guidelines are advisory, see 543 U.S. 220, 245 (2005), a sentencing court must still give pertinent policy statements ‘“respectful consideration.”’ Pepper v. United States, 131 S. Ct. 1229, 1247 (2011) (quoting Kimbrough v. United States, 552 U.S. 85, 101 (2007)). But a fair reading of the district court judge’s statement shows that he was merely confirming the post-Booker reality that the guidelines are no longer mandatory. This is especially true with respect to policy statements— even before the Booker decision made the guidelines advisory, the U.S. Sentencing Commission called ‘“policy statements” . . . merely “advisory” and hence “nonbinding.”’ United States v. Robertson, 648 F.3d 858, 859 (7th Cir. 2011) (quoting, inter alia, United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005)). A fortiori, now, when the entire guidelines are only advisory, the parts of the guidelines that were non-binding even before Booker—e.g., policy statements—‘are intended to be given even less consideration by sentencing judges.’ Id. The district court judge’s comment on the policy-statement factor in § 3553(a)(5) is consistent with how the guidelines are now construed.”

Affirmed.

11-3272 U.S. v. Reyes-Medina

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Manion, J.