United States v. Gammicchia, Sam ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-3325
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAM GAMMICCHIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 964-2—Charles R. Norgle, Sr., Judge.
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ARGUED JULY 11, 2007—DECIDED AUGUST 9, 2007
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Before POSNER, COFFEY, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The defendant appeals from his
30-month prison sentence for obstruction of justice. The
appeal bespeaks a misunderstanding of federal sentenc-
ing law under the regime created by the Booker decision.
When as in this case a criminal appeal is frivolous, the
defendant’s attorney should file an Anders motion rather
than waste the court’s time on a lost cause. We write in the
hope of heading off what is assuming the proportions of
an avalanche of utterly groundless sentencing appeals.
The defendant was a political appointee in the office
of the Clerk of the City of Chicago, James Laski, a codefen-
2 No. 06-3325
dant. In the course of a grand jury investigation into the
acceptance of bribes that the Clerk had received from
Michael Jones and others, the defendant assisted Laski in
trying to persuade Jones’s wife to testify falsely. Later,
fearing that Jones and his wife were cooperating with the
prosecutors (they were), the defendant threatened Michael
Jones, saying “if I go to jail, you have to go under witness
protection.”
The defendant pleaded guilty to obstruction of justice,
and his guidelines range was enhanced to reflect his having
threatened Jones. The enhanced range was 30 to 37 months,
and the judge sentenced the defendant to 30 months. The
defendant claims that the sentence is unreasonably long,
and that a sentence of a year and a day, which with good-
conduct credits would entitle him to be released after
319 days (a little over 10 months), see White v. Scibana, 390
F.3d 997, 999-1000 and n. 1 (7th Cir. 2004); 28 C.F.R.
§ 523.20, would be appropriate.
He advances two grounds for the extraordinary lenity
that he seeks. The first is that his codefendants received
lighter sentences—Laski received only 24 months and the
other codefendants received even lighter sentences. But
the others had cooperated in bringing down Laski and
Gammicchia; and Laski had not threatened anyone. The
defendant’s second ground is that his wife has cancer
and other ailments and that he is in poor health as well.
A judge can sentence a defendant outside the defendant’s
guidelines range, but if he sentences the defendant with-
in the range, as in this case, this court presumes that the
sentence is reasonable, e.g., United States v. Garner, 454 F.3d
743, 751 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005); see also United States v. Kristl, 437
F.3d 1050, 1054 (10th Cir. 2006) (per curiam), and the
No. 06-3325 3
Supreme Court has held that the presumption is proper.
Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007). It can be
overcome, moreover, only in an unusual case. “[I]t will be
the rare sentence indeed that was required under the
Guidelines before Booker but forbidden afterward, when
discretion has gone up rather than down.” United States v.
Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006) (empha-
sis in original); see United States v. Williams, 436 F.3d 767,
768 (7th Cir. 2006); United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005).
There are two reasons for the very limited appellate
review of a sentence that is within the properly computed
guidelines range. The first is the Supreme Court’s observa-
tion in Rita v. United States, supra, 127 S. Ct. at 2463, 2465,
that such a sentence reflects the confluence of the judg-
ments of the Sentencing Commission and the sentencing
judge. The second reason is the vague and nondirectional
character of the only guidance that the law offers a federal
sentencing judge, or the appellate court reviewing the
sentence, besides the guidelines themselves (and of
course the maximum and minimum sentences fixed by
Congress)—namely the set of sentencing factors in 18
U.S.C. § 3553(a). A partial list of those factors, which
however covers most cases, including this one, is as
follows:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
4 No. 06-3325
(C) to protect the public from further crimes of the
defendant; and
* * *
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have
been found guilty of similar conduct.
The first ground pressed on us by the defendant gestures
toward subsection (6) (unwarranted disparities) and the
second toward subsection (1) (characteristics of the defen-
dant). There was no unwarranted disparity. Nothing is
more common than for codefendants to receive different
sentences, since often and in this case though they are
tried together they are convicted of different crimes or,
if convicted of the same crimes, nevertheless they engaged
in misconduct of different gravity.
The defendant’s bad health can be a relevant characteris-
tic. United States v. Wurzinger, 467 F.3d 649, 652-53 (7th Cir.
2006); United States v. Bullion, 466 F.3d 574, 576 (7th Cir.
2006). The imprisonment of a very sick person can make
the disutility imposed by prison greater than it would be
for a healthy person even if, as can be assumed (certainly
in the federal prison system), the sick inmate receives
adequate medical care. That was a ground for departure
even when the guidelines were mandatory. United States
v. Krilich, 257 F.3d 689, 693 (7th Cir. 2001). Also, as noted
in the Bullion case, infirmity can reduce the risk of recidi-
vism and thus the benefit to society of a long sentence.
Anxiety about one’s sick wife could also increase the
disutility of imprisonment. United States v. Kane, 452 F.3d
140, 142-43 (2d Cir. 2006) (per curiam); United States v.
Brown, 449 F.3d 154, 160 (D.C. Cir. 2006).
No. 06-3325 5
But these are considerations for the sentencing judge,
not us, to weigh against the gravity of the defendant’s
crime and the other factors in section 3553(a). The factors
are intangibles, “weighable” only in a metaphorical sense,
that the sentencing judge is in a better position than the
appellate judges to place them in the balance with com-
peting considerations. The sentencing judge in this case
said he did that and we have no reason to doubt that he
did. His sentencing the defendant at the bottom of the
guidelines range was an exercise of lenity, since the
defendant had committed a serious breach of the public
trust exacerbated by his threatening a witness. The de-
fendant’s brief and oral argument present no even
colorable argument that the sentence is unreasonably
severe.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-9-07