« Environment - EPA to study air near large farms | Main | Ind. Law - More on "Impact of same sex marriage ban in Ohio and Michigan Constitutions may portend Indiana issues" »

Monday, April 04, 2005

Ind. Decisions - 7th Circuit posts one today

USA v. George, Gary R. (ED Wis.) [7 pp.]

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges. EASTERBROOK, Circuit Judge. Gary George served in Wisconsin’s Senate for 23 years, acquiring considerable influence over public expenditures. He was indicted in 2003 on charges that he accepted kickbacks in exchange for exercising that influence, which extended over federal grants as well as programs financed by state revenues. He pleaded guilty to violating 18 U.S.C. §371 (conspiracy to defraud the United States) as part of a bargain in which the prosecutor dismissed all other charges, and he was sentenced to 48 months’ imprisonment plus about $614,000 in restitution.

Four months after pleading guilty, George moved to dismiss the single count of conviction under Fed. R. Crim. P. 12(b)(3)(B) for failure to state an offense. Relying on United States v. Bloom, 149 F.3d 649 (7th Cir. 1998), George contended that the events narrated in the indictment did not violate 18 U.S.C. §1346 by depriving Wisconsin of his honest services. This motion is more than a little odd. By pleading guilty a defendant normally surrenders an opportunity to contest the merits, waiving (not just forfeiting) all arguments that could have been raised earlier. See United States v. Broce, 488 U.S. 563 (1989). And the plea agreement in this case made that explicit: ¶25 waives all matters that could have been raised by pretrial motion. Failure of the indictment to state an offense is such a matter. * * *

George submits that his sentence violates the sixth amendment, as the Supreme Court explained it in United States v. Booker, 125 S. Ct. 738 (2005). Yet the district judge understood the sixth amendment problem, for sentencing occurred after our opinion in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), which the Supreme Court affirmed last January. The judge proceeded as if the Sentencing Guidelines were defunct, so that he had discretion to select any term within the statutory limits of zero to 60 months. Had the court followed the Guidelines, it would have sentenced George to the statutory maximum— for the sentencing range was 63 to 78 months, and George does not contend that there was any basis for a downward departure.

The Supreme Court’s decision in Booker shows that the Guidelines continue to inform district judges’ decisions. Judges need not rehearse on the record all of the considerations that 18 U.S.C. §3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. That’s the approach we have taken for decisions to reimprison a person after revoking supervised release, a subject on which the Guidelines always have been advisory rather than binding. See United States v. Salinas, 365 F.3d 582, 588-90 (7th Cir. 2004); United States v. Hale, 107 F.3d 526, 529-30 (7th Cir. 1997). It makes sense to follow the same approach for the Guidelines as a whole in Booker’s wake. Chief Judge Randa explained his decision. Had he known that the Guidelines continue to have substantial sway, he might have imposed a sentence closer to 60 months; it is inconceivable that anticipation of the ongoing need to start from and respect the Guidelines’ framework would have led to a lower sentence. Any error therefore was harmless. See Fed. R. Crim. P. 52(a). * * *

Posted by Marcia Oddi on April 4, 2005 01:56 PM
Posted to Ind. (7th Cir.) Decisions