U.S. v. Burnett

• Decision Date: 14 September 1995
• Docket Number: No. 95-1716,95-1716
• Citation: 66 F.3d 137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy R. BURNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 137

66 F.3d 137

UNITED STATES of America, Plaintiff-Appellee, v. Timothy R. BURNETT, Defendant-Appellant.

No. 95-1716.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 1, 1995.

Decided Sept. 14, 1995.

Byron G. Cudmore, Asst. U.S. Atty. and Rodger A. Heaton, Asst. U.S. Atty. (argued), Office of the United States Attorney, Springfield, IL, for plaintiff-appellee.

David B. Mote (argued), Springfield, IL, for defendant-appellant.

Before POSNER, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

We confront at the outset of this case a jurisdictional question: whether a defendant may appeal the computation of his sentencing range, when he already has a sentence below the lower bound of the range he thinks is right. Surprisingly, none of the courts of appeals has addressed this question, although dictum from the Supreme Court implies an answer.

Details of this case matter little to the jurisdictional inquiry, but the pattern is familiar. Timothy Burnett was caught peddling cocaine and marijuana. Hoping to reduce his punishment, he agreed to help the prosecutor convict his confederates. According to calculations the district court accepted, the presumptive range for Burnett's crimes is 121 to 151 months. The prosecutor recommended a 25% discount for Burnett's assistance, see U.S.S.G. Sec. 5K1.1, and the district judge imposed a sentence of 91 months' imprisonment. Burnett believes that the starting point for this departure was too high. He thinks that he was a "minor" participant in the drug ring, which if so would have led the judge to subtract two offense levels under U.S.S.G. Sec. 3B1.2(b). Take away two levels, and the resulting range becomes 100 to 125 months in prison. Deduct another 25% for assistance and the range is 75 to 94 months. The rub, however, is that the 25% deduction is a downward departure, and a defendant cannot appeal the district court's refusal to exercise discretion to depart from the lower bound of the range. United States v. Franz, 886 F.2d 973 (7th Cir.1989). The range Burnett believes correct is 100 to 125 months. His current sentence is 91 months, lawful under his own calculations. If the district judge had given the two level decrease Burnett sought, and then imposed a sentence of 91 months' imprisonment, Burnett could not have appealed. He thinks that the same sentence becomes appealable because of the judge's adverse resolution of the range issue. Yet only judgments are appealable; litigants may not contest remarks judges make along the way. Warner/Elektra/Atlantic Corp. v. County of DuPage, 991 F.2d 1280 (7th Cir.1993). Is the dispute about the application of Sec. 3B1.2(b) more than academic? Would an opinion of this court be more than advisory?

To these rhetorical questions, the answers are affirmative. Correction of a legal error often leads to a revision in the judgment, and the possibility that the district judge will impose the same sentence does not preclude review. Consider some common cases under the Guidelines. (a) The judge gives two reasons for a sentence, one legally correct and the other legally erroneous. Either reason could support the sentence, but it is unclear whether the judge would have imposed the same sentence had he known that only one of the two reasons was proper. We will vacate the sentence and remand for resentencing under the correct view. United States v. Croom, 50 F.3d 433 (7th Cir.1995). See also United States v. Ferra, 948 F.2d 352 (7th Cir.1991) (affirming a sentence identical to one that had earlier been vacated because of legal errors). (b) The judge makes a legal error in determining the Guideline range, but upward departure would be allowable on the ground to which the judge referred. We will vacate the sentence and remand for resentencing under the correct legal view. United States v. Ruffin, 997 F.2d 343 (7th Cir.1993). (c) The judge imposes a sentence that is included in two overlapping ranges. As a result of a legal mistake, the judge believes the higher range to be correct; but even with the mistake rectified, the same sentence could be imposed from the lower range. Unless the judge expressly states that he would impose the same sentence whichever range is correct, we will vacate the sentence and remand for the exercise of discretion under the correct legal view. United States v. Mount, 966 F.2d 262 (7th Cir.1992). Just so in a case such as this one: the defendant has the potential for gain on a remand, because the district judge may have meant to grant a substantial discount from the properly calculated range.

Many opinions say that the court of appeals cannot review the district court's decision not to make a discretionary downward departure, and cannot review the amount of any departure the judge chooses to make. E.g., Bischel v. United States, 32 F.3d 259, 265 n. 6 (7th Cir.1994). This is so not because of a prohibition in the statute but because of a lack of authorization to review discretionary decisions about departures. The statute supplying the authority to review sentences, 18 U.S.C. Sec. 3742, creates only two categories that could be relevant. The defendant may argue that the sentence was "imposed in violation of law" or was "imposed as a result of an incorrect application of the sentencing guidelines". Ordinarily a judge's refusal to depart downward cannot be characterized as a "violation of law" or "an incorrect application of the sentencing guidelines," but it is not hard to see instances where one or both of these criteria would be met. A judge who refuses to depart because he believes that he is legally forbidden to do so sets up a claim that the sentence rests on "an incorrect application of the sentencing guidelines". See United States v. Poff, 926 F.2d 588, 590-91 (7th Cir.1991) (en banc); United States v. Johnson, 997 F.2d 248, 252 (7th Cir.1993). Similarly, a judge who refuses to depart (or selects an amount of departure) for reasons related to race, sex, religion or several other criteria has imposed a sentence "in violation of law". We lack jurisdiction to review the sentence only when none of these arguments is available to the defendant.

Burnett's contentions on this appeal boil down to a claim that his sentence of 91 months' imprisonment is "a result of an incorrect application of the sentencing guidelines." 18 U.S.C. Sec. 3742(a)(2). Failure to subtract two levels for his "minor" role is the "incorrect application," and the sentence of 91 months is the "result" in the sense that it likely would have been lower had the judge known that the correct range is 100 to 125 months. Cf. United States v. Yahne, 64 F.3d 1091, 1094-95 (7th Cir.1995). Of course we cannot know that it would have been lower. Perhaps the judge is fixed in his opinion that 91 months is the right sentence for someone who committed Burnett's crimes and offered the assistance he did. Perhaps not. He has not told us. The treatment of overlapping guideline ranges (example c above) offers a close parallel--with the difference that instead of two overlapping guideline ranges we have one range plus a zone of reasonable departures. If the district judge had said that he would impose a 91-month sentence whether or not he thought Burnett a "minor" participant, then there would be no point to this appeal. As things stand, however, the actual sentence may be a "result" of the decision about minor-participant status. How much the decision affected the sentence does not matter to our jurisdiction.

It is in the interest of the legal system and defendants alike to ensure that even "discounted" sentences rest on a legally correct foundation. We therefore...