Posner Waxes Eloquent on Sentencing Appeals

     CHICAGO (CN) – The 7th Circuit clarified ambiguous precedent in affirming the above-guidelines sentence for a man who sold thousands of fake IDs.
     Sentencing guidelines for the charge of conspiring to make and sell false identification recommend a range of 37 to 46 months. But U.S. District Judge Samuel Der-Yeghiayan imposed a 60-month sentence against Francisco Castillo. Though the term exceeds guidelines, it is well within the statutory maximum of 15 years.
     Castillo appealed, and though the defendant’s court-appointed attorney requested to withdraw from an argument that he deemed frivolous, the 7th Circuit used the case as an opportunity to discuss the review of sentencing decisions.
     “We have said that ‘the farther the judge’s sentence departs from the guidelines … the more compelling the justification … that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed,” Judge Richard Posner wrote for the three-judge panel. “The ambiguity is in the word ‘farther.’ It can be conceived of in either relative or absolute terms.”
     While a 60-month sentence is 30 percent longer than the 46-month guidelines cap, it is still a small 14 months in absolute terms, the court noted.
     “Guidelines ranges are inherently arbitrary, so had the judge in this case sentenced the defendant to 47 months instead of the guideline maximum of 46 it would not have been a significant challenge to the [Sentencing] Commission’s penal judgment and so would not have required much in the way of justification,” Posner wrote. “A 30 percent departure requires more.”
     The court found it easy to excuse the lack of extended consideration to a 30 percent increase in Castillo’s case.
     While the guidelines range for false document offenses rises in stages with the number of false documents created, the stages stop increasing after 100 documents.
     “It is unclear why the count stops at 100, a suspiciously round number,” Posner wrote. “Unclear to the Sentencing Commission itself, perhaps, because Application Note 5 to the guideline says that if the defendant’s crime involves substantially more than 100 documents an upward departure ‘may be warranted.’ This is what is called an ‘encouraged departure.'”
     Castillo, convicted of producing more than 2,800 false documents, could clearly qualify for a higher sentence. Posner described aggravating factors such as Castillo’s computer software for marketing false identification as “icing on the cake.”
     “We don’t see how imposing a sentence 30 percent above the guidelines range could be thought excessive punishment for 28 times the number of fraudulent documents that triggers the highest guideline sentence, when a 1 percent increase in documents (from 99 to 100) would have increased his maximum guideline sentence by 39 percent,” Posner wrote.
     The court let Castillo’s attorney withdraw and dismissed the appeal.

%d bloggers like this: