United States v. Reuter, Christopher ( 2006 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-4503
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    CHRISTOPHER K.P. REUTER,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 02-10011-09—Joe Billy McDade, Judge.
    ____________
    SUBMITTED AUGUST 23, 2006—DECIDED SEPTEMBER 19, 2006
    ____________
    Before BAUER, POSNER, and WOOD, Circuit Judges.
    POSNER, Circuit Judge. 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
    2                                                 No. 05-4503
    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 (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 hear-
    ing) 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 va-
    lidity 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 (2005)—as the
    No. 05-4503                                                  3
    Third Circuit, overruling Kikumura, has now held. 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. 28 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 he is justifiably reluctant to
    impose a sentence most of which rests entirely on a finding
    of fact supported by a mere preponderance of the evidence
    (though in this case, to repeat, the evidence was overwhelm-
    ing). Section 3553(a)(2)(A) includes among the factors to be
    considered in sentencing “the need for the sentence
    imposed . . . to reflect the seriousness of the offense, to
    promote respect for the law, and to provide just punishment
    for the offense.” A judge might reasonably conclude that a
    sentence based almost entirely on evidence that satisfied
    only the normal civil standard of proof would be unlikely to
    promote respect for the law or provide just punishment
    for the offense of conviction. That would be a judgment for
    the sentencing judge to make and we would uphold it so
    long as it was reasonable in the circumstances. United States
    v. Mykytiuk, 
    415 F.3d 606
    , 608 (7th Cir. 2005).
    4                                             No. 05-4503
    The motion of the defendant’s lawyer to withdraw is
    granted and the appeal is dismissed.
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—9-19-06