Seventh Circuit suggests guideline sentence too low

The Seventh Circuit, per Judge Easterbrook, in US v. Elliot, No. 05-4523 (7th Cir. Nov. 2, 2006) (available here), accepts a defendant’s argument that the district court at sentencing improperly applied an enhancement for obstruction of justice.  Thereafter, the court explains at length why it views the applicable guideline sentence as too lenient.  Here are some notable passages from Elliot:

Because the district judge miscalculated the Guideline range, which he used as a starting point, the error may have affected Elliott’s sentence, and we must remand.  This does not imply, however, that a sentence of 21 months is unreasonably high; to the contrary, it strikes us as unreasonably low, and United States v. Booker, 543 U.S. 220 (2005), gives the district court ample authority to impose an appropriate sentence on remand.

Guideline 2J1.6 does not take into account the duration of the flight from justice.  How long the fugitive remains on the lam is vital to assessing the deterrent effect of a sentence, so 18 U.S.C. §3553(a)(2)(B), which comes to the fore after Booker, requires the district court to give this subject close attention. If Elliott had been caught by the end of October 1989, then tacking 21 months on to his 60-month sentence might well have provided appropriate deterrence and desert.  But he remained at liberty for almost 15 years, which substantially eroded the deterrent force of his 60-month sentence….

Under Booker the district judge, not the appellate tribunal, is principally responsible for selecting a reasonable sentence.  But defendants often suppose that Booker means “lower sentences” rather than “sentences selected with greater discretion from the statutory range.”  Booker does not require lower sentences; nor does a conclusion that the district court erred in calculating the Guideline range.  More discretion can produce higher sentences as well as lower ones.  Whether this is one of the cases in which the sentence should rise is for the district court in the first instance.

Elliot provides a thoughtful exploration of a § 3553(a)(2) factor and notices that the guideline in this case misses a relevant consideration.  One would hope that cases like Elliot would help the Seventh Circuit (and other circuits) recognize problems with affording the guidelines a blanket presumption of reasonableness.  But I am not holding my breath.