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Sentencing – Discretion

U.S. Court of Appeals For the Seventh Circuit

Criminal

Sentencing – Discretion

Where the district court did not address the defendant’s principal arguments in mitigation, and it cannot be determined whether the court considered them, the sentence must be vacated.

“The government concedes that the district court failed to address Morris’s argument that his sentence was unfairly driven by the crack/powder disparity, by the inclusion of a large amount of a counterfeit substance in the drug calculation, and by the actions of the informant’s police handlers. Under Johnson and Arberry, that was a procedural error. Although it is true that the court granted Morris a below-guidelines sentence, it is impossible to discern from this record whether the court credited Morris’s principal arguments in fashioning that sentence and so we must remand. Johnson, 643 F.3d at 549 (remand is necessary to consider the defendant’s argument regarding the crack/powder disparity even when the court sentenced the defendant below the guidelines range). The court may well have considered and rejected Morris’s arguments and simply neglected to memorialize that analysis on the record. Perhaps the court concluded, for example, that delivering a counterfeit substance presented the same risk for violence as delivering crack cocaine. We offer no opinion on the reasonableness of Morris’s below-guidelines sentence should the district court decide to reimpose it. But because we cannot determine whether the error here affected the district court’s choice of sentence, it may not be characterized as harmless. Olson, 450 F.3d at 683; Schlifer, 403 F.3d at 854.”

Vacated and Remanded.

14-2242 U.S. v. Morris

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Rovner, J.

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