Wednesday, April 13, 2005

Dicta on Reasonableness in the Post-Booker World

United States v. Gary R. George, Case No. 04-3099 (04/04/2005): Given the single charge to which he pleaded guilty, the defendant faced a maximum of five years in prison. His sentencing took place after the Seventh Circuit’s decision in Booker, but before the Supreme Court’s decision. His guidelines range was 63 to 78 months. The district judge, taking the position that he could impose any sentence he thought appropriate, sentenced George to 48 months. The Seventh Circuit’s opinion tells us only that George’s argument on appeal was that the sentence violated the Sixth Amendment right guaranteed in Booker. The Court rightly pointed out that the district court sentenced Mr. George without treating the guidelines as mandatory, which was sufficient compliance with Booker. We are also told that George did not claim that the sentence was unreasonable as measured by the new Booker standard. Given the Court’s statement of the case, it is somewhat difficult to understand the point of George’s appeal.

In rejecting this appeal, the Court threw in some disturbing dictum. It is not necessary for a district judge to "rehearse on the record all of the considerations that 18 U.S.C. §3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less." The Seventh Circuit further noted that, "It is hard to conceive of below-range sentences that would be unreasonably high." The Court gave no explanation as to why the guidelines range would have such pride of place.

Mr. George did receive some relief on the calculation of restitution. The district court imposed a substantial restitution obligation. The record presented a number of different choices for the district judge to select, and he gave no explanation of how he arrived at the dollar amount he chose. The Court noted that Circuit Rule 50 requires an explanation for all appealable orders. The judge was directed to set forth the basis for the amount of restitution it would order.