Judge Posner for Seventh Circuit calls appeal of within-guideline sentence frivolous

In his concurrence in Rita, Justice Stevens stressed that the Court’s majority opinion “makes clear … that the rebuttability of the presumption [for within-guideline sentences] is real.”  Nevertheless, Judge Posner today writing for the Seventh Circuit in US v. Gammicchia, No. 06-3325 (7th Cir. Aug. 9, 2007) (available here) deems one defendant’s efforts to rebut the presumption frivolous.  Here is how the opinion begins:

The defendant appeals from his 30-month prison sentence for obstruction of justice.  The appeal bespeaks a misunderstanding of federal sentencing law under the regime created by the Booker decision. When as in this case a criminal appeal is frivolous, the defendant’s attorney should file an Anders motion rather than waste the court’s time on a lost cause.  We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals.