Seventh Circuit Overturns Sentence for Lack of Explanation

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990′s.  Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme.  Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no comment by the district judge in response to their arguments for lenience.  Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness.  United States v. Robertson (No. 11-1651).

The decision rests on a line of Seventh Circuit cases going back to United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005).  These cases, which have not been followed in some other circuits, require district judges to address nonfrivolous arguments for a sentence below what is recommend by the sentencing guidelines.  As I discussed in this article, I think the Cunningham rule should be adopted more widely and enforced more rigorously.  For that reason, I’m glad to see the Seventh Circuit reaffirm the rule in Robertson.

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects.  

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Seventh Circuit Clarifies Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach

Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.  

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DOJ Changes Its Mind, Seventh Circuit Does Not

As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses.  In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system.  Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.

The Seventh Circuit’s position followed that of the Department of Justice.  However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity.  Additionally, three other circuits have since rejected the Seventh Circuit’s position.  In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc.  Last week, however, the court announced that the initial ruling would stand.

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