7th Circuit, per Easterbrook, discusses reasonableness and restitution

I noted in this weekend post two circuit cases discussing reasonableness in dicta, and today in an opinion from Judge Easterbrook, the Seventh Circuit has given us more interesting dicta to debate.  In US v. George, No. 04-3099 (7th Cir. Apr. 4, 2005) (available here), the Seventh Circuit suggests appellate review under the Booker will resemble “the approach we have taken for decisions to reimprison a person after revoking supervised release.”  Here are some highlights from George (with citations omitted):

The Supreme Court’s decision in Booker shows that the Guidelines continue to inform district judges’ decisions.  Judges need not 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.  That’s the approach we have taken for decisions to reimprison a person after revoking supervised release, a subject on which the Guidelines always have been advisory rather than binding.  It makes sense to follow the same approach for the Guidelines as a whole in Booker‘s wake. Chief Judge Randa explained his decision.  Had he known that the Guidelines continue to have substantial sway, he might have imposed a sentence closer to 60 months; it is inconceivable that anticipation of the ongoing need to start from and respect the Guidelines’ framework would have led to a lower sentence. Any error therefore was harmless.

George does not contend that his actual sentence is unreasonable, the post-Booker standard of appellate review.  It is hard to conceive of below-range sentences that would be unreasonably high.  George’s is not.  The United States would have better claim to be the party aggrieved by the district judge’s disposition, and it has not appealed.

In addition to this discussion of reasonableness, George also addresses Booker‘s applicability to restitution awards in the federal system (which depend on judicial fact-finding):

George’s contention that Booker requires juries rather than judges to assess restitution is misguided.  There is no “statutory maximum” for restitution; indeed, it is not a criminal punishment but instead is a civil remedy administered for convenience by courts that have entered criminal convictions, so the sixth amendment does not apply.  We have accordingly held that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not affect restitution, and that conclusion is equally true for Booker.

Thanks to White Collar Crime Prof Blog, which discusses George here, for the pointer.