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David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.\u00a0 This extraordinary punishment was ordered despite the fact that\u00a0Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.\u00a0 At sentencing,\u00a0counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.\u00a0 Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years<\/em> above the minimum recommended by the federal sentencing guidelines.<\/p>\n Not so fast, said the Seventh Circuit last week in United States v. Harris <\/a><\/em>(Nos. 08-1192, 08-1543, & 08-1694).\u00a0 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”:<\/p>\n [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\u00a0see no\u00a0indication that the district court considered it.\u00a0 We therefore remand Morrow’s case for resentencing.<\/p><\/blockquote>\n In emphasizing the importance of thorough sentence explanations, particularly to demonstrate that the defendant’s arguments for lenience were at least considered, Harris <\/em>indicates (contrary to an\u00a0earlier prediction of mine) that the Seventh Circuit’s important decision in United States v. Cunningham,<\/em> 429 F.3d 673 (7th Cir. 2005), is still alive and well.\u00a0 Sometimes it is nice to be proven wrong.\u00a0 <\/p>\n As I have noted in earlier posts, my forthcoming article in the Florida State Law Review,\u00a0“<\/em>Explaining Sentences,”\u00a0<\/a>argues that Cunningham <\/em>properly required sentencing judges to give express responses to nonfrivolous arguments for lenience, but also\u00a0identifies tensions between Cunningham <\/em>and the Supreme Court’s subsequent decision in Rita v. United States, <\/em>551 U.S. 338 (2007), as well as various other worrisome trends in the post-Cunningham <\/em>caselaw.\u00a0<\/p>\n As I discuss at greater length in the article, the occasional\u00a0recent decisions that have vacated sentences based on Cunningham <\/em>violations generally seem to ignore or misinterpret Rita<\/em>.\u00a0 Harris,<\/em> though, suggests an interesting basis for distinguishing Rita.<\/em>\u00a0 In Rita, <\/em>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\u00a0arguments based on health concerns).\u00a0 But, as the Seventh Circuit noted in Harris,<\/em> Rita’s guidelines range (33-41 months)\u00a0was much narrower and lower than Morrow’s (360 months to life).\u00a0<\/p>\n And, intuitively,\u00a0Rita does not<\/em> seem entitled to as\u00a0thorough an explanation for his 33-month sentence (at the bottom of his relatively low guidelines range)\u00a0as is\u00a0Morrow for his 504-month sentence (twelve years above the bottom of his relatively high guidelines range).\u00a0 This is consistent with the logic of Mathews v. Eldridge,<\/em> 424 U.S. 319 (1976),\u00a0<\/em>\u00a0which indicated that the strength of required procedural protections\u00a0varies according to the magnitude of the individual interests implicated by a government decision.\u00a0 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.\u00a0 In short, I think Harris <\/em>may be onto something in focusing on the severity of the guidelines range and placement within the range.<\/p>\n 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.\u00a0 I will present the paper at the Marquette Criminal Appeals Conference <\/a>on June 16, and I hope to have a draft on SSRN by the end of the month.<\/p>\n Other new Seventh Circuit opinions in criminal cases last week were:<\/p>\n United States v. Lewis<\/em> <\/a>(No. 08-1854) (Evans, J.) (defendant’s robbery conviction affirmed; trial\u00a0court did not commit plain error in permitting certain\u00a0prejudicial evidence to be given to jury; undisclosed impeachment evidence\u00a0not\u00a0material).<\/p>\n