Friday, October 13, 2006
Ind. Decisions - 7th Circuit issues one Indiana decision today
In U.S. v. Avila (ND Ind., Theresa L. Springmann, Judge), a 5-page opinion, Circuit Judge Posner writes:
The defendant was indicted along with a number of others for conspiracy to distribute cocaine and marijuana and for possession of marijuana with intent to distribute it. The first charge carried a statutory maximum prison sentence of 20 years and the second of 5 years. Just before the trial began, the defendant pleaded guilty to the second charge pursuant to an informal agreement with the government that it would drop the first charge. The judge imposed the statutory maximum of 5 years and the defendant appeals on the ground that the judge misapplied the sentencing guidelines. * * *
The guidelines range really was just zero to six months, and so the sentence must be vacated and the case remanded for resentencing—which is not to say that the district judge cannot give him a longer sentence than six months. The guidelines are merely advisory, and a sentence above or below the applicable guidelines range will be affirmed (provided it is within the statutory limits) if reasonable. The judge could well conclude that Avila’s other criminal activities (besides possession of marijuana with intent to sell it), though they were not relevant conduct and hence did not affect the guidelines range, warranted a heavier punishment. But the sentencing judge is required to consider the guidelines before picking a sentence, United States v. Booker, 543 U.S. 220, 264 (2005); United States v. Gonzalez, 2006 WL 2588951, at *1 (7th Cir. Sept. 11, 2006), and this entails a correct understanding of their application to the defendant’s conduct. REVERSED AND REMANDED.
Posted by Marcia Oddi on October 13, 2006 11:37 AM
Posted to Ind. (7th Cir.) Decisions