United States v. Reuter, 05-4503.
| Decision Date | 19 September 2006 |
| Docket Number | No. 05-4503.,05-4503. |
| Citation | 463 F.3d 792 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Christopher K.P. REUTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
K. Tate Chambers (submitted), Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
Ronald J. Stone, Stratton, Giganti, Stone & Kopec, Springfield, IL, for Defendant-Appellant.
Before BAUER, POSNER, and WOOD, Circuit Judges.
Christopher Reuter pleaded guilty to conspiracy to distribute illegal drugs. 21 U.S.C. §§ 841(b)(1)(A), 846. The maximum guidelines sentence for his offense would have been 105 months in prison had the judge not found at the sentencing hearing that Reuter had committed a murder in the course of the conspiracy. This finding (after the judge made various adjustments called for by the guidelines) raised Reuter's guidelines range to 360 to 480 months. The judge sentenced him to 360 months, and he appeals. His lawyer has filed an Anders brief, arguing that there is no nonfrivolous ground for an appeal.
The lawyer is right even if, as his brief notes, the judge was required to find by "clear and convincing" evidence, not a mere preponderance, that Reuter had committed the murder. He had confessed and his confession had been amply corroborated.
The Third Circuit, picking up a hint in McMillan v. Pennsylvania, 477 U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), had held in United States v. Kikumura, 918 F.2d 1084, 1100-01 (3d Cir.1990), that proof by clear and convincing evidence is required when a finding will so lengthen the defendant's sentence as to make it a case of the tail (the judge's finding at the sentencing hearing) wagging the dog (the sentence that the evidence at trial, or as here the evidence supporting the guilty plea, would have warranted). We have occasionally indicated sympathy for this position, e.g., United States v. Johnson, 342 F.3d 731, 735-36 (7th Cir.2003); United States v. Smith, 308 F.3d 726, 744-45 (7th Cir.2002), as have other courts, see, e.g., United States v. Anderson, 243 F.3d 478, 485-86 (8th Cir.2001), while never actually reversing a sentence on that ground, even though, as Johnson points out, we have upheld sentences with awfully high ratios of tail to torso. 342 F.3d at 736. (In United States v. Rodriguez, 67 F.3d 1312, 1323 (7th Cir.1995), for example, the tail raised the defendant's sentence from 63 months to life.) In United States v. Boos, 329 F.3d 907, 909-10 (7th Cir.2003), while stopping short of rejecting the Kikumura rule, we expressed skepticism about its validity and noted that in United States v. Masters, 978 F.2d 281, 286-87 (7th Cir. 1992), we had "castigat[ed]" the reasoning in Kikumura.
The debate has, we believe, been rendered academic by United States v. Booker, 543 U.S. 220, 264-65, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) — as the Third Circuit, overruling Kikumura, held in United States v. Grier, 449 F.3d 558, 570 (3d Cir.2006). In contrast, the Eighth Circuit, after Booker but before Grier, reaffirmed its adoption of the Kikumura rule, United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir.2005), but without discussion beyond the summary statement that Booker had changed nothing; as usual in a Kikumura case, the court went on to find that the tail had not wagged the dog in the case before it. Id. at 1008.
With the guidelines no longer binding the sentencing judge, there is no need for courts of appeals to add epicycles to an already complex set of (merely) advisory guidelines by multiplying standards of proof. The judge is cabined, but also liberated, by the statutory sentencing factors. 18 U.S.C. § 3553(a); United States v. Cunningham, 429 F.3d 673, 676 (7th Cir.2005). Unlike the guidelines, they bind, but they are broad enough and loose enough to allow the judge to dip below the guidelines range if ...
To continue reading
Request your trial
-
U.S. v. Grier
...be of no moment that the "usual in a Kikumura case" is for the sentencing court to rule "that the tail ha[s] not wagged the dog." Reuter, 463 F.3d at 793. The few defendants who have benefited from the minimal due process protection that Kikumura (as subsequently interpreted) provides surel......
-
U.S. v. Ali
...and thereby avoid rendering the advisory Guidelines effectively mandatory in contravention of Booker. E.g., United States v. Reuter, 463 F.3d 792, 793 (7th Cir.2006) ("A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil st......
-
U.S. v. Fisher
...See Booker, 543 U.S. at 260-64, 125 S.Ct. 738; Grier II, 475 F.3d at 568; Rita, 127 S.Ct. at 2464. Similarly, in United States v. Reuter, 463 F.3d 792, 793 (7th Cir.2006), the Seventh Circuit opined that the "tailwagging-the-dog" debate had been "rendered academic" by Booker, With the guide......
-
United States v. Brooks
...standard applies, even where judge sentenced defendant for conduct underlying charge on which jury hung); United States v. Reuter, 463 F.3d 792, 793 (7th Cir.2006) (finding tail-wagging-dog concern rendered “academic” after Booker); but see United States v. Staten, 466 F.3d 708, 717–20 (9th......