“Today’s [Booker] opinion from Judge Posner is so truly bizarre and harmful that it took my breath away.”

The quote in this headline comes from an e-mail I received from a lawyer telling me about the latest Seventh Circuit Booker flight of fancy today in US v. Bullion, No. 06-1523 (7th Cir. Oct. 19, 2006) (available here).  As this lawyer explains, “Judge Posner basically says that an appeal from a district judge’s substantially-above-guidelines sentence was so frivolous as to require an Anders brief.” 

I am breathless, too, primarily because I cannot imagine Judge Posner ever accusing the government of filing a frivolous appeal when it complains about a below-guideline sentence.  Indeed, the Seventh Circuit has more often reversed below-guideline sentences than affirmed them, as detailed here, even on arguments that seem, at least to me, far less viable than the defendant’s arguments in Bullion.

Here is Judge Posner’s opening paragraph in Bullion (with cites omitted):

The defendant pleaded guilty to being a felon in possession of a firearm.  The guidelines range for his offense was 188 to 235 months, but the judge sentenced him to 264 months, and the defendant challenges the sentence as unreasonable.  Because it exceeded the guidelines range, there is no presumption that it is reasonable.  But the standard of reasonableness, introduced by the Booker decision, confers broad sentencing discretion. The judge must consider the guidelines but is in no sense bound by them.  He is bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a), which are both numerous and vague, thus giving the judge a great deal of running room.  There was no basis for the defendant’s challenging the exercise of discretion by the sentencing judge in this case — and, we add, in cases like it.  Not because there were no mitigating factors, but because the balance that the judge struck between them and the aggravating factors was so far inside the outer bounds of his sentencing discretion as to make the claim of unreasonableness frivolous and the appeal a compelling candidate for an Anders brief.

Though Judge Posner likes to harp on the vagueness of 18 U.S.C. § 3553(a), I continue to wonder if he has ever really thought about its central command together with his eagerness to presume the guidelines reasonable.  Section 3553(a) commands the sentencing court to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”  If the guidelines are presumptively reasonable in light of this command, that means in this case a within-guideline sentence of 188 months would have been presumptively “sufficient but not greater than necessary”  for the defendant. 

How then can it be frivolous — not just without merit, but frivolous — for the defendant to contest a sentence that requires six more years of imprisonment?!?  Consider also the reality that the fact that the defendant in this case was being sentence after pleading guilty to just a firearm possession offense.  Wow.  Even though Judge Posner is clearly quite hostile to defendants exerting their appellate rights after Booker, it seems quite reckless (and harmful) for him to assert that a decision to appeal an above-guideline sentence is frivolous!

I hope the Government might have the sense to ask Judge Posner to eliminate the suggestion that this appeal was frivolous.  After all, as noted here, the Government moved in Demarree to asked the Seventh Circuit to remove some of Judge Posner’s language from a panel opinion that it thought mis-represented the Government’s position on Booker.  (The Seventh Circuit rejected that motion, so at least we know the Government sometimes loses before Judge Posner on a Booker-related issue.)