Frivolous
Case Analysis
August
20, 2007
Even
accepting as correct the underlying holding — Gammicchia’s sentence
is reasonable — the court’s conclusion that the appeal is frivolous
is suspect, as it comes very close to effecting the concurrence of
Justice
Scalia (joined by Justice Thomas) in Rita v. U.S., 127 S.Ct. 2456 (2007), rather
than the majority opinion.
The
Scalia concurrence noted his disagreement with the remedial opinion in U.S. v.
Booker, 543 U.S. 220 (2005), concluding that substantive “reasonableness”
review is unworkable.
Addressing
the proper scope of reasonableness review, nonetheless, Scalia argued that appellate
courts should be prohibited from reviewing the substantive sentencing choices
made by district courts, and should be limited to reviewing the sentencing procedures
followed by the district court.
This
is the system that the Seventh Circuit has essentially adopted, at least for sentences
within a properly calculated guideline range.
In
effect, if a district court properly calculates the guideline range, imposes a
sentence within that range, and addresses any sec. 3553(a) factors that the defendant
raises, then the Seventh Circuit will regard any appeal as frivolous.
That
eliminates any real substantive review of the sentence for reasonableness, and
limits the reasonableness review to the sentencing procedures that the district
court follows.
The court
wrote, “The sentencing judge … said he [weighed the sec. 3553(a) factors]
and we have no reason to doubt that he did.” This is not the substantive
review contemplated by the majority opinion in Rita; it is the procedural review
contemplated in the Scalia concurrence.
Admittedly,
there is a difference between the standard proposed in the Scalia concurrence,
and the opinion in the case at bar. The Scalia concurrence would limit reasonableness
review to procedural matters, regardless of the sentence.
In
the Seventh Circuit’s opinion, in contrast, reasonableness review appears
to be limited to procedural matters only when the sentence is within a properly
calculated guideline range. Presumably, where the district court imposes an above-guideline
sentence, a defendant may appeal on reasonableness grounds without fear that the
appeal will be labeled frivolous, even if the appeal is ultimately unsuccessful.
The
U.S. Supreme Court decision in Rita may have settled the standard for appellate
review of sentences within the guideline range, but when a court imposes an above-guideline
sentence, there are still enough unsettled issues that appeals should not be casually
labeled frivolous.
Click
here for Main Story.
David
Ziemer can be reached by email.
