Wednesday, December 06, 2006

Full Speed Ahead!

United States v. Jose Francisco Gama-Gonzalez, No. 06-1965 (December 5, 2006): Mr. Gama-Gonzalez received a sentence at the low end of his guidelines, and the Seventh Circuit affirmed. This very brief opinion is noteworthy for two reasons.

First, the Court saw no reason to hold off decision until the Supreme Court decides the two Booker cases on which it recently granted certiorari. The opinion could not conceive that the Supreme Court’s decision would lead to a different result. Regardless of whether this assessment is correct, counsel should be aware that sentencing appeals will move forward without much concern as to how the Supreme Court will resolve the difficult issues now pending before the Supreme Court.

Second, Mr. Gama-Gonzalez had presented an argument for a downward variance. Apparently, the district judge did not set forth any reasons for rejecting that position and the requested variance. In the Seventh Circuit’s view, the district judge "did not need to discuss the subject," since the argument was so insubstantial. Whether the argument was insubstantial or not, it is curious that a decision-maker should be able to make a decision without commenting at all on the merits of a contrary argument. If an argument is no more than a fleeting reference in a footnote, the Court’s approach is an application of well-established rules. But if an argument is fully developed, simple fairness would require the decision-maker to give some explanation.