More on Judge Posner’s Booker work in Cunningham

I noted in this post some flaws in Judge Posner’s important work for the Seventh Circuit in Cunningham (first discussed here), where a post-Booker guideline sentence was vacated for “inadequate explanation.”   My FSR colleague Professor Steve Chanenson has spotlighted another concern with the opinion in Cunningham: the mysterious decision not to cite 18 U.S.C. 3553(c). 

Section 3553(c) provides, inter alia, that the court, “at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.”  Steve in an e-mail made this astute observation about Cunningham: “It seems as though 3553(c) could have done much of the heavy lifting for the Cunningham court while actually grounding the opinion in the SRA and reducing the opaque prose.”  (Steve’s valuable insights flow from his examination of appellate review in his recent Stanford Law Review article, Guidance from Above and Beyond.)