{"id":15690,"date":"2011-11-19T10:55:31","date_gmt":"2011-11-19T15:55:31","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=15690"},"modified":"2011-11-19T10:55:31","modified_gmt":"2011-11-19T15:55:31","slug":"seventh-circuit-overturns-sentence-for-lack-of-explanation","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/11\/seventh-circuit-overturns-sentence-for-lack-of-explanation\/","title":{"rendered":"Seventh Circuit Overturns Sentence for Lack of Explanation"},"content":{"rendered":"

\"\"<\/a>Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990\u2032s. \u00a0Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme. \u00a0Despite 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. \u00a0Earlier this week, however, the Seventh Circuit vacated the sentences based on this lack of responsiveness. \u00a0United States v. Robertson\u00a0<\/em>(No. 11-1651)<\/a>.<\/p>\n

The decision rests on a line of Seventh Circuit cases going back to\u00a0United States v. Cunningham<\/em>, 429 F.3d 673 (7th Cir. 2005). \u00a0These 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. \u00a0As I discussed in\u00a0this article<\/a>, I think the\u00a0Cunningham\u00a0<\/em>rule should be adopted more widely and enforced more rigorously. \u00a0For that reason, I\u2019m glad to see the Seventh Circuit reaffirm the rule in\u00a0Robertson.<\/em><\/p>\n

Although it does not purport to break any new legal ground, the decision nonetheless has some noteworthy aspects. \u00a0<\/p>\n

First, the court strongly embraced self-motivated rehabilitation as a sentencing factor. \u00a0Here\u2019s some of the language:<\/p>\n

The Supreme Court recently reiterated \u201cthe principle that \u2018the punishment should fit the offender and not merely the crime.\u2019\u201d\u00a0Pepper v. United States<\/em>, 131 S. Ct. 1229, 1240 (2011),\u00a0quoting Williams v. New York<\/em>, 337 U.S. 241, 247 (1949). \u201cHighly relevant \u2014 if not essential \u2014 to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant\u2019s life and characteristics.\u201d\u00a0Pepper<\/em>, 131 S. Ct. at 1235,\u00a0quoting Williams<\/em>, 337 U.S. at 247. This aim is codified in 18 U.S.C. \u00a7 3553(a), which requires that any sentence imposed be \u201csufficient, but not greater than necessary\u201d to serve the sentencing goals of punishment, deterrence, protection of the public, and rehabilitation, and which requires the court to consider \u201cthe history and\u00a0characteristics of the defendant.\u201d Adequate consideration of a defendant\u2019s evidence of rehabilitation fits squarely within these parameters. Demonstrated self-motivated rehabilitation is direct and relevant evidence of \u201cthe need for the sentence imposed . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; [and to] provide the defendant with needed educational or vocational training . . . or other correctional treatment in the most effective manner.\u201d 18 U.S.C. \u00a7 3553(a)(2)(B)-(D).<\/p>\n

The power of evidence of self-rehabilitation was evident inGall<\/em>, where the Supreme Court noted that it was reasonable for the district court to attach \u201cgreat weight\u201d to a defendant\u2019s decision to change his life and withdraw from a drug distribution conspiracy: \u201cCompared to a case where the offender\u2019s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing [the defendant\u2019s] turnaround was genuine, as distinct from a transparent attempt to build a mitigation case.\u201d 552 U.S. at 57. Such self-motivated rehabilitation \u201clends strong support to the conclusion that imprisonment [is] not necessary to deter [a defendant] from engaging in future criminal conduct or to protect the public from his future criminal acts.\u201d\u00a0Id<\/em>. at 59. \u00a0(12-13)<\/p><\/blockquote>\n

It\u2019s interesting to see such reliance on the Supreme Court\u2019s recent decision in\u00a0Pepper<\/em>. \u00a0As I discussed\u00a0here<\/a>,\u00a0Pepper\u00a0<\/em>strikes me as a potentially significant break from the Court\u2019s recent federal sentencing jurisprudence. \u00a0If lower courts were to read\u00a0Pepper\u00a0<\/em>for all it\u2019s worth, we might start to see a real shift in federal sentencing practices.<\/p>\n

Also notable in\u00a0Robertson<\/em>\u00a0is the fact that the defendants\u2019 arguments were not entirely<\/em> passed over in silence, as they were in\u00a0Cunningham<\/em>. \u00a0Whereas some\u00a0Cunningham<\/em>-type cases involve district judges who literally say nothing to indicate that they have even heard a defendant\u2019s argument, the judge in\u00a0Robertson\u00a0<\/em>expressly\u00a0indicated some awareness of the facts emphasized by Mr. and Mrs. Robertson:<\/p>\n

Concerning the Robertsons\u2019 criminal histories, the court acknowledged that Henry had not committed any crimes since 2002 and that Elizabeth lacked any criminal history. But other than noting, without further detail or explanation, that Elizabeth had\u00a0provided \u201cexcellent service . . . as a professional in the medical field,\u201d it is not apparent that the sentencing court considered the Robertson\u2019s unusually strong evidence of self-motivated rehabilitation over the past ten years. Because the court\u2019s silence makes it impossible to discern that it appropriately balanced the Robertsons\u2019 rehabilitated lives and characters against the seriousness of their offense for purposes of 18 U.S.C. \u00a7 3553(a), we find this minimal treatment to be insufficient.<\/p>\n

. . .\u00a0The probation office and the government agreed that it would be appropriate to treat Henry\u2019s criminal history as overstated due to the passage of time, yet the district court\u2019s only acknowledgement of this argument was its comment that Henry was not \u201cyouthful or immature\u201d when he committed the reckless driving offense in 2002. \u00a0(15-16)<\/p><\/blockquote>\n

I think it unfortunate that the\u00a0Cunningham\u00a0<\/em>rule is sometimes treated as satisfied when there is mere\u00a0acknowledgement<\/em>\u00a0of a defendant\u2019s argument, as opposed to substantive responsiveness. \u00a0I\u2019m glad to see\u00a0Robertson\u00a0<\/em>suggesting a more rigorous approach to\u00a0Cunningham<\/em>.<\/p>\n

In this regard, I thought it interesting that the Seventh Circuit made nothing of the fact that \u201cthe district judge agreed to modify Elizabeth\u2019s date to report to prison to allow her to continue to work as a nurse long enough to become eligible for retirement benefits.\u201d \u00a0(15 n.3) \u00a0This contrasts with the Sixth Circuit\u2019s opinion in\u00a0United States v. Liou<\/em>, 491 F.3d 334 (6th Cir. 2007), in which the district judge\u2019s decision to give the defendant a more favorable report date was held to constitute an adequate response to the defendant\u2019s argument for a below-guidelines sentence.<\/p>\n

An interesting question about\u00a0Robertson<\/em>\u00a0is why the Seventh Circuit\u00a0formally<\/em>\u00a0treated the district judge\u2019s error as merely procedural,\u00a0remanding for a resentencing at which the original sentence could be reimposed. \u00a0It is seems clear enough that the panel felt the district judge erred substantively, not just procedurally, in imposing multiyear prison sentences on two defendants who led exemplary lives for a decade after their crimes were committed. \u00a0For instance, it\u2019s hard not to read this view between the lines of the final words of the Seventh Circuit\u2019s opinion: \u201cthe [district] court should carefully weigh and explain its consideration of the Robertsons\u2019 evidence of self-motivated rehabilitation.\u201d \u00a0(17) \u00a0Why not end the possibility of misunderstanding or mischief at the district court level and forthrightly hold that a guidelines sentence would be substantively unreasonable in this case?<\/p>\n

Appellate courts have been loathe to hold guidelines sentences substantively unreasonable. \u00a0(As a side note, it is actually a debatable question whether the Robertsons\u2019 sentences can be fairly characterized as guidelines sentences, since their guidelines ranges were calculated using a newer and harsher version of the guidelines than existed at the time they committed their crimes.) \u00a0This reluctance doubtlessly owes much to the presumption of reasonableness that may be accorded guidelines sentences under\u00a0Rita v. United States<\/em>, 127 S. Ct. 2456 (2007), and to the underlying premise of\u00a0Rita\u00a0<\/em>that the guidelines embody the research and expertise of the Sentencing Commission. \u00a0Appellate courts should recognize, however, that is does no violence to the logic of\u00a0Rita<\/em>\u00a0to hold guidelines sentences substantively unreasonable in unusual circumstances that the Commission did not contemplate in crafting the guidelines. \u00a0To start holding more guidelines sentences substantively unreasonable \u2014 where there are sound, principled grounds for doing so \u2014 would in effect start to build the common law of sentencing for which many scholars have been advocating for a very long time. \u00a0Such a common law holds out the hope for greater transparency, consistency, and proportionality in federal sentencing.<\/p>\n

But are there persuasive grounds for holding the Robertsons\u2019 sentences substantively unreasonable? \u00a0But my lights, this is a complex and uncertain question. \u00a0The underlying principle would be that defendants who have led productive, crime-free lives for many years before being charged present almost no recidivism risk, rendering multiyear prison terms a needless burden on the both the defendants and our overcrowded federal prison system.<\/p>\n

However, as someone who believes that punishment should be based more on the severity of the crime than the risk of the criminal, this principle leaves me a little cold.<\/p>\n

On the other hand, as I\u2019ve been exploring in\u00a0some of my recent writing<\/a>, I also think that retributive approaches to punishment may be compatible with crediting defendants for acts that have a penitential character. \u00a0I don\u2019t know, though, whether anything the Robinsons did could fairly be characterized as penitential.<\/p>\n

Aside from the questions relating to self-motivated rehabilitation,\u00a0Robinson<\/em>\u00a0also raised a couple of other interesting questions. \u00a0First, the Seventh Circuit adhered to its precedent in holding that the Ex Post Facto Clause is not violated when defendants are sentenced under a harsher version of the guidelines adopted after their crimes were completed. \u00a0Several other circuits take a contrary view, which may make the question ripe for Supreme Court consideration.<\/p>\n

Second, the Seventh Circuit noted, but felt it did not have to resolve, continuing uncertainty over whether the aggravating role enhancement of U.S.S.G.\u00a0\u00a7 3B1.1 requires that the defendant have exerted control over other participants in a criminal activity.<\/p>\n

Cross posted at Life Sentences<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Henry and Elizabeth Robertson were involved in a mortgage fraud scheme in the 1990\u2032s. \u00a0Many years later, they were charged with and pled guilty to wire fraud for their part in the scheme. \u00a0Despite an unusual and compelling story of self-motivated rehabilitation, they were sentenced to 63 and 41 months of imprisonment, with almost no […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,74,122,23],"tags":[],"class_list":["post-15690","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-federal-sentencing","category-public","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/15690","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=15690"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/15690\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=15690"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=15690"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=15690"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}