Criminal
appeal frivolous
Appeal
of guideline sentence found frivolous
By
David Ziemer
david.ziemer@wislawjournal.com
August
20, 2007
| What
the court held Case:
U.S. v. Gammicchia, No. 06-3325. Issue:
Is a sentence within the applicable guideline range unreasonable, where the district
court considered the sec. 3553(a) factors? Holdings:
No. Where the
district judge weighed the relevant factors, and imposed a guideline sentence,
the sentence is reasonable, and the appeal is frivolous.
|
The
Seventh Circuit is apparently receiving too many appeals of criminal sentences
that it considers frivolous.
In
an Aug. 9 opinion affirming a defendant’s sentence, the court began, “When
as in this case a criminal appeal is frivolous, the defendant’s attorney
should file an Anders motion rather than waste the court’s time on a lost
cause. We write in the hope of heading off what is assuming the proportions of
an avalanche of utterly groundless sentencing appeals.”
In
light of the opinion, defense attorneys need to seriously consider whether to
file an appeal, if the only argument is that the district court unreasonably imposed
a sentence within the applicable guideline range, and failed to consider the 18
U.S.C. 3553(a) factors.
Sam
Gammicchia was a political appointee in the office of the Clerk of the City of
Chicago. He pleaded guilty to obstruction of justice, based on his role in threatening
witnesses in a grand jury investigation into bribery at the clerk’s office.
He
was sentenced to 30 months imprisonment, within the guideline range of 30-37 months,
and appealed.
On
appeal, he argued his sentence was unreasonable, because codefendants received
lower sentences, and because of the poor health of both him and his wife.
The
Seventh Circuit found the appeal frivolous, in an opinion written by Judge Richard
A. Posner.
Rejecting
the first basis as a ground for appeal, the court noted, “Nothing is more
common than for codefendants to receive different sentences.”
Turning
to the second basis, the court acknowledged that, regardless of whether the guidelines
are mandatory or advisory, a defendant’s bad health can be a basis for a
below-guideline sentence.
Nevertheless,
the court concluded the appeal was frivolous, stating, “these are considerations
for the sentencing judge, not us, to weigh against the gravity of the defendant’s
crime and the other factors in section 3553(a).”
The
court classified the sec. 3553(a) factors as “intangibles, ‘weighable’
only in a metaphorical sense,” and noted that the sentencing judge is in
a better position than the court of appeals to weigh them.
The
court wrote, “The sentencing judge in this case said he did that and we have
no reason to doubt that he did. … The defendant’s brief and oral argument
present no even colorable argument that the sentence is unreasonably severe.”
Click
here for Case Analysis.
David
Ziemer can be reached by email.
