David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine. This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later. At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer. Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.
Not so fast, said the Seventh Circuit last week in United States v. Harris (Nos. 08-1192, 08-1543, & 08-1694). The court, per Judge Williams, vacated Morrow’s sentence because the sentencing judge failed to address the health argument, which was not an argument “clearly without merit”:
[W]e cannot assure ourselves that the district court weighed Morrow’s health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it. We therefore remand Morrow’s case for resentencing.
In emphasizing the importance of thorough sentence explanations, particularly to demonstrate that the defendant’s arguments for lenience were at least considered, Harris indicates (contrary to an earlier prediction of mine) that the Seventh Circuit’s important decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), is still alive and well. Sometimes it is nice to be proven wrong.
As I have noted in earlier posts, my forthcoming article in the Florida State Law Review, “Explaining Sentences,” argues that Cunningham properly required sentencing judges to give express responses to nonfrivolous arguments for lenience, but also identifies tensions between Cunningham and the Supreme Court’s subsequent decision in Rita v. United States, 551 U.S. 338 (2007), as well as various other worrisome trends in the post-Cunningham caselaw.
As I discuss at greater length in the article, the occasional recent decisions that have vacated sentences based on Cunningham violations generally seem to ignore or misinterpret Rita. Harris, though, suggests an interesting basis for distinguishing Rita. In Rita, the Supreme Court held that the sentencing judge was not required to address the defendant’s arguments for a below-guidelines sentence (which, coincidentally, also included arguments based on health concerns). But, as the Seventh Circuit noted in Harris, Rita’s guidelines range (33-41 months) was much narrower and lower than Morrow’s (360 months to life).
And, intuitively, Rita does not seem entitled to as thorough an explanation for his 33-month sentence (at the bottom of his relatively low guidelines range) as is Morrow for his 504-month sentence (twelve years above the bottom of his relatively high guidelines range). This is consistent with the logic of Mathews v. Eldridge, 424 U.S. 319 (1976), which indicated that the strength of required procedural protections varies according to the magnitude of the individual interests implicated by a government decision. Additionally, the fact that Rita was sentenced at the bottom of his range at least implicitly reflects consideration of mitigating circumstances, while Morrow’s mid-range sentence provides no such reassurance. In short, I think Harris may be onto something in focusing on the severity of the guidelines range and placement within the range.
As an aside, I am currently working on a paper that will discuss sentence explanations in Wisconsin law and propose a specific set of principles to guide appellate courts in reviewing the adequacy of sentence explanations. I will present the paper at the Marquette Criminal Appeals Conference on June 16, and I hope to have a draft on SSRN by the end of the month.
Other new Seventh Circuit opinions in criminal cases last week were:
United States v. Lewis (No. 08-1854) (Evans, J.) (defendant’s robbery conviction affirmed; trial court did not commit plain error in permitting certain prejudicial evidence to be given to jury; undisclosed impeachment evidence not material).
United States v. Kirkland (No. 08-3410) (Kanne, J.) (drug conviction affirmed; defendant forfeited Fourth Amendment claim).
United States v. Hosking (No. 08-1826) (Cudahy, J.) (trial court properly determined that victim’s investigation costs were recoverable through restitution order and that order could require lump-sum payment from defendant’s IRA, but order vacated because basis for amount of restitution not adequately explained).