Booker Cert Grants

By now probably everyone knows that the Supreme Court has granted certiorari in two Booker cases, one in which the sentence was within the guidelines and one in which the sentence was below the guidelines and the reviewing court reversed. Mario Claiborne v. United States (06-5618) and Victor A. Rita v. United States (06-5754). What the Supreme Court will do with these two cases and what dicta it will create is beyond accurate prediction.

But the grant of cert should provide a powerful reminder that the current Seventh Circuit case law on Booker is just that—current. If the Supreme Court should create a more defendant-friendly landscape, we can be certain that those who did not keep these issues alive will have a tough time reaping the benefits of a new test.

United States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005) and similar cases have been cited so often that by now it may seem hopeless to appeal sentences within the guidelines, and of course right now it is often hopeless (but not always—think United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)). But filing a hopeless appeal is the only way to keep these issues alive for our clients.