USA v. Ryan Gibb
Filing
Filed opinion of the court by Judge Posner. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge, concurring and Diane S. Sykes, Circuit Judge, concurring. [6809598-1] [6809598] [16-1747]
Case: 16-1747
Document: 30
Filed: 01/06/2017
Pages: 6
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
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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)
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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
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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.
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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.
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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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