U.S. v. Kirkpatrick

• Decision Date: 14 December 2009
• Docket Number: No. 09-2382.,09-2382.
• Citation: 589 F.3d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William S. KIRKPATRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

589 F.3d 414

UNITED STATES of America, Plaintiff-Appellee, v. William S. KIRKPATRICK, Defendant-Appellant.

No. 09-2382.

United States Court of Appeals, Seventh Circuit.

Argued November 17, 2009.

Decided December 14, 2009.

Stephen B. Clark, Attorney (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Renee E. Schooley, Attorney (argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

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

EASTERBROOK, Chief Judge.

After William Kirkpatrick was arrested for possessing a gun—something his felony convictions made unlawful, see 18 U.S.C. § 922(g)(1)—he confessed to committing four drug-related murders. He also told a cellmate that he had arranged a contract hit on the federal agent who was conducting the investigation. After investing more than 200 hours in investigations, agents concluded that Kirkpatrick had neither killed anyone nor arranged for the agent's death. Kirkpatrick pleaded guilty to the felon-in-possession charge. The Sentencing Guidelines recommended a range of 37 to 46 months. The judge gave him more-sensibly so. Lying to a federal agent is a crime, see 18 U.S.C. § 1001, and so is threatening the life of a federal agent, see 18 U.S.C. § 115(a)(1)(B). Enhancements on account of an offender's additional crimes are normal and proper. See United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997).

Kirkpatrick contests not the fact of the enhancement but its magnitude. The district court imposed a sentence of 108 months' imprisonment, more than double the top of the Guidelines' range. Kirkpatrick calls this unreasonable: an extra five years in prison is an exceptionally harsh sentence for wasting 200 hours of federal employees' time. Whenever a court gives a sentence substantially different from the Guidelines' range, it risks creating unwarranted sentencing disparities, in violation of 18 U.S.C. § 3553(a)(6), for most other judges will give sentences closer to the norm. That's a major reason why substantial variances from the Sentencing Commission's recommendations require careful thought. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Cf. Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009); Nelson v. United States, ___ U.S. ___, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009).

When a variance is carefully explained, appellate review is deferential. But when a sentence appears to be chosen arbitrarily, it is problematic. That is the case here. The judge said that Kirkpatrick's lies, which put the case agent in fear and wasted the time of agents who had better things to do, justified a higher sentence. That cannot be gainsaid. But five years' extra time in prison? The judge proceeded as if any sentence within the statutory maximum (10 years) needs no explanation beyond the conclusion that something more than the top of the Guidelines' range is in order. Yet every sentence must be justified under the criteria in § 3553(a), and the district judge does not appear to have recognized that leaping close to the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere—not only because this may overpunish braggadocio, but also because it leaves little room for the marginal deterrence of persons whose additional deeds are more serious (for example, actually putting out a contract on an agent's life).

Before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made the Guidelines advisory, we had held that departures must be explained in the Guidelines' own terms. Thus if the district court's reason for an upward departure was an additional crime, the departure could not exceed the incremental sentence that would have been appropriate had the defendant been charged with, and convicted of, that additional crime. See United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990); United States v. Horton, 98 F.3d 313, 317 (7th Cir.1996); United States v. Rogers, 270 F.3d 1076, 1082 (7th Cir. 2001). Booker and its successors have changed that rule. The Guidelines are no longer binding, so a judge need not explain why a sentence differs from the Sentencing Commission's recommendation. See United States v. Bartlett, 567 F.3d 901, 909 (7th Cir.2009). It is enough to explain why the sentence is appropriate under the statutory criteria. But a judge still must start by using the Guidelines to provide a benchmark that curtails unwarranted disparities. See Gall, 552 U.S. at 49, 128 S.Ct. 586, and Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). And this implies that, when a judge believes that extra crimes justify extra punishment, it is wise to see how much incremental punishment the Sentencing Commission recommends. Otherwise a particular sentence...