United States v. Gibbs, No. 16-1747 (7th Cir. 2017)

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Defendant pleaded guilty to possessing cocaine with intent to distribute, 21 U.S.C. 841(a)(1) and (b)(1)(C). Because of the quantity and his criminal history, his guideline sentencing range was 151-188 months and his statutory maximum 240 months. The government recommended, and the court imposed, a 216‐month sentence. The judge generally cited the 18 U.S.C. 3553(a) sentencing factors, calling the defendant “a poster child for being a career offender,” and saying “unfortunately you may be one of those people that will never be able to conform to be a law‐abiding person.” The Seventh Circuit affirmed, stating that, while the sentence lacked sophisticated analysis, “prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable.” The court suggested that, for the future, consultation with the Sentencing Commission might be a valuable resource.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1747 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RYAN L. GIBBS, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 4:15 cr 40037 JPG 1 — J. Phil Gilbert, Judge. ____________________ ARGUED DECEMBER 13, 2016 — DECIDED JANUARY 6, 2017 ____________________ Before POSNER, KANNE, and SYKES, Circuit Judges. POSNER, Circuit Judge. The defendant pleaded guilty to possessing cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Because of the quantity of the cocaine that he possessed and his history of drug and other criminal offenses, his guideline sentencing range was 151 to 188 months and his statutory maximum 240 months. The government recommended a 216 month sentence (i.e., 18 years, compared to the 15 and two thirds years that 2 No. 16 1747 would be the length in years of a sentence of 188 months, the top of the guideline range), and that was the sentence that the district judge imposed and that the defendant’s appeal challenges. The judge explained that he was imposing a sentence significantly higher than the top of the defendant’s guideline range on the basis of the “[18 U.S.C. §] 3553(a) [sentencing] factors.” He called the defendant “a poster child for being a career offender,” and told him “unfortunately you may be one of those people that will never be able to conform to be a law abiding person.” He quoted loosely from the section 3553(a) factors, saying none too clearly that When I look at the 3553(a) factors apart from the “nature and circumstances of the offense,” your “history and char acteristics” of you as a defendant does [sic] not indicate that there should be any leniency at all; that they [anteced ent unclear] “reflect the seriousness of the offense,” “pro mote respect for the law,” which your history and charac teristics indicate that you have no respect for the law; “provide just punishment.” Nothing—No previous sen tence that this Court has imposed or other Courts have de terred you from your criminal conduct. Neither the government, in recommending a 216 month sentence, nor the district judge, in imposing it, attempted a sophisticated analysis of the likely consequences for the de fendant, his family, and society (primarily the persons to whom he sold illegal drugs) of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range. Judging from the government’s brief and the judge’s sentencing statement, both the prosecution and the judge based the 216 month sen tence (proposed by the government, imposed by the judge) No. 16 1747 3 on a hunch. As the prosecutors as well as the judge are high ly experienced, their hunches are likely often to be reliable. And because federal prosecutors are free to suggest any sen tence within the statutory range, and a federal district judge has broad latitude in picking the sentence to impose within that range, and because the briefs and argument of defense counsel in this case bordered on the perfunctory—the argu ment being that the judge should have reiterated his reasons for imposing the 216 month sentence, though as far as ap pears his prior explanation included all the considerations (of which we’ve noted the main ones) that entered into his decision—the sentence must be affirmed. Some consideration, however, should be given to the possibility of basing a prison sentence—at least a very long one (and an 18 year sentence is very long)—on something other than a hunch. The work of the U.S. Sentencing Com mission in formulating sentencing guidelines provides a clue to a possible alternative. The sentencing judge, instead of ranging at large, with little guidance, over the wide space between the statutory minimum sentence for the defendant’s crime or crimes and the statutory maximum, might consider asking the Sentencing Commission to evaluate the appropri ateness in particular cases of all the possible sentencing points in the statutory sentencing range, including points that fall outside the guideline sentencing range. In a case like the present one the Sentencing Commission might advise the prosecutors, defense counsel, and the judge why it had fixed the guideline range where it did and how disapproving it would be of sentences below or above that range. The Com mission might for example take a close look at the govern ment’s suggested 216 month sentence in this case and the arguments the government gives for it, and conclude that 4 No. 16 1747 maybe it’s a proper sentence given the particular facts of the case even though it lies outside the guideline range. The de fense proposed a sentence of only 10 years, which would be about two and a half years below the sentencing guideline; and again, the Commission might agree in the special cir cumstances of this case that that was a plausible alternative to a sentence in the guideline range—or might explain why it was not. Judges wouldn’t have to ask the Commission for its input, or follow its recommendations, but they might find it a valuable resource. The judgment of the district court is AFFIRMED. No. 16 1747 5 SYKES, Circuit Judge, with whom KANNE, Circuit Judge, joins, concurring in the judgment. The defendant’s only ar gument is that the district judge failed to adequately explain his reasons for imposing a prison term of 216 months. The record shows otherwise. The judge addressed the main ar guments in mitigation and then focused on the defendant’s lengthy criminal record, which began as a juvenile, contin ued unabated into adulthood, and includes many violent crimes (including a shooting resulting in death). The judge emphasized the serious risk of recidivism, noting that all past efforts at deterrence had failed. That’s explanation enough for the 216 month sentence—28 months above the top of the range recommended by the Sentencing Guide lines. The defendant acknowledges the point but challenges the sequence of the judge’s remarks. He thinks a judge must an nounce the sentence first and then give his reasons for it. Or if the judge has already given his reasons earlier in the hear ing, he must repeat them after pronouncing sentence. Only then, the argument goes, can the parties know the link be tween the judge’s rationale and the sentence. There’s no sup port for this argument. Judges normally explain their reason ing before pronouncing sentence. The judge followed that norm here. No repetition was required. 6 No. 16 1747 KANNE, Circuit Judge, concurring. I join Judge Sykes in her concurrence. I write further to add that although Judge Posner has envisioned an interesting method to arrive at an appropriate sentence in individual cases, it is my view that such a unique system would be fundamentally unworkable in practice and contrary to the statutory provisions enacted by Congress and approved by the Supreme Court. Judge Posner, of course, recognizes that in this case we cannot command the alternative approach to sentencing he suggests. Therefore, I join Judge Posner and Judge Sykes in affirming the sentence that the district court imposed.

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