United States v. Bullion, James D. , 466 F.3d 574 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1523
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES D. BULLION,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30136—William D. Stiehl, Judge.
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ARGUED SEPTEMBER 22, 2006—DECIDED OCTOBER 19, 2006
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Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
being a felon in possession of a firearm. The guidelines
range for his offense was 188 to 235 months, but the
judge sentenced him to 264 months, and the defendant
challenges the sentence as unreasonable. Because it ex-
ceeded the guidelines range, there is no presumption that it
is reasonable. United States v. Robinson, 435 F.3d 699, 701 (7th
Cir. 2006). But the standard of reasonableness, introduced
by the Booker decision, confers broad sentencing discretion.
The judge must consider the guidelines but is in no sense
bound by them. He is bound only by the statutory sentenc-
2 No. 06-1523
ing factors, 18 U.S.C. § 3553(a), which are both numerous
and vague, thus giving the judge a great deal of running
room. United States v. DeMaree, 459 F.3d 791, 795 (7th Cir.
2006); United States v. Walker, 447 F.3d 999, 1007 (7th Cir.
2006). There was no basis for the defendant’s challenging
the exercise of discretion by the sentencing judge in this
case—and, we add, in cases like it. Not because there were
no mitigating factors, but because the balance that the judge
struck between them and the aggravating factors was so far
inside the outer bounds of his sentencing discretion as to
make the claim of unreasonableness frivolous and the
appeal a compelling candidate for an Anders brief.
When we put this to the defendant’s lawyer at argument,
she said that the defendant wanted her to appeal. No doubt;
had he not wanted her to appeal, it would have been serious
misconduct for her to appeal. But a defendant has no right
to file a frivolous appeal, and his lawyer has a duty to file an
Anders brief rather than to argue frivolous grounds for
reversal. McCoy v. Court of Appeals of Wisconsin, District 1,
486 U.S. 429, 438 (1988); United States v. Cooper, 170 F.3d 691,
692 (7th Cir. 1999); United States v. Osuna, 141 F.3d 1412,
1415 (10th Cir. 1998); United States v. Humphrey, 7 F.3d 1186,
1191 (5th Cir. 1993).
The defendant’s frightening criminal history begins
with aggravated kidnapping and rape of a minor, the rape
of another minor, and another aggravated kidnapping and
rape, continues with a conviction of attempted armed
robbery and two convictions each of armed robbery and
auto theft, and is punctuated by numerous arrests. His
criminal career culminated in the offense for which he
was convicted in the present case. In the course of an assault
on his wife, he fired a sawed-off shotgun, apparently in her
general direction, though without hitting her.
No. 06-1523 3
The district judge “looked carefully through all the
material that’s been submitted to me to find some argument
for this court to show some leniency in your sentencing. I
find none. I think the most important factor that leaps out
for consideration is a need to protect the public from you.
Because each time you have been released from confine-
ment, you have quickly returned to a life of crime.” He
mentioned as another consideration in the severe sentence
that he gave—a consideration related to both the protective
and the retributive goals of punishment—“the list and the
nature of these very serious, violent, heinous crimes.”
The defendant offers two arguments for why the sentence
is unreasonably long. The first is that because of his age (58
at sentencing) and health (he is an insulin-dependent
diabetic), the sentence amounts to life in prison. He says
that if he were healthy, his life expectancy would be 78; that
his diabetes takes 13 years off, reducing his life expectancy
to 65; and that a sentence of 22 years will therefore exceed
his life span.
The sentencing guidelines state that “age may be a reason
to depart downward in a case in which the defendant is
elderly and infirm and where a form of punishment such as
home confinement might be equally efficient as and less
costly than incarceration.” U.S.S.G. § 5H1.1. In other words,
if the defendant is elderly and infirm, he may be harmless,
and this bears on the sentencing goal of preventing him (as
distinct from deterring him and others) from committing
crimes by incarcerating him. In still other words, the older,
weaker, etc., the defendant is, the less likely he is to
recidivate, and this argues for a shorter sentence. Bullion
obviously is not yet elderly, infirm, or for any other reason
harmless, but no doubt he will become harmless sooner
than would an otherwise identical 20-year-old who received
the same sentence.
4 No. 06-1523
Bullion’s argument is different—not that a point will come
at which it no longer serves an incapacitative purpose to
keep him in prison, but that age per se is a mitigating factor,
as if it were penal policy to encourage the elderly to commit
crimes. That argument is unlikely to persuade any judge. In
any event it fails on its own terms. Life expectancy is not
age at death, but merely median (in some versions average)
age at death. To have a life expectancy of 78 (the life
expectancy from which Bullion begins his analysis) is to
have a 50 percent chance of dying before one’s 78th birthday
and a 50 percent chance of dying after. Thus the fact that
Bullion’s life expectancy is 65 doesn’t mean that he won’t
live considerably longer. Furthermore, his life expectancy is
not 65. The starting point in his computation—78—is the life
expectancy of the average American at birth (actually it’s
77). Remaining life expectancy increases with every year
one lives, and in fact the life expectancy of the average 58-
year-old American is not 77 but 84—indeed, doubtless
higher, given continued advances in medicine.
As for the reduction due to insulin-dependent diabetes,
the critical question, unmentioned by the defendant, is
the age of onset—the earlier that is, the shorter the life
expectancy. If the defendant became diabetic recently, and
so in all likelihood is suffering merely from type 2 diabe-
tes and is therefore taking insulin because he does not
control his diet, then the reduction in his life expectancy,
according to the source he cites (mysteriously, a study of the
life expectancy of Canadian diabetics), is 5 to 10 years. If the
average of those numbers, 7.5, is subtracted from 84, the
defendant’s life expectancy is not 65 but 76.5. A 22-year
sentence, if served in full (it need not be—good-time credit
would reduce it to 18.7 years) would take him to age 80 or,
if he behaves himself, to 76.7; but a person with a life
expectancy of 76.5 has a good chance of living to 80. The
defendant himself argued in the district court for a 17.5-year
No. 06-1523 5
sentence on the ground that he could then hope to be
released at 75.5; yet 17.5 plus 65 is 82.5.
The defendant’s second argument is that since the ten-
dency to commit crimes, violent and otherwise, diminishes
with age (which is true, U.S. Sentencing Commis-
sion, “Measuring Recidivism: The Criminal History Compu-
tation of the Federal Sentencing Guidelines” 12, 28 (May
2004); John H. Laub & Robert J. Sampson, “Understanding
Desistance from Crime,” 28 Crime & Just. 1, 5 (2001); Keith
C. Owens, Comment, “California’s ‘Three Strikes’ Debacle,”
25 Sw. U. L. Rev. 129, 155 (1995); Christopher Slobogin,
“Dangerousness and Expertise,” 133 U. Pa. L. Rev. 97, 121
(1984)), a 58 year old need not be given a 22-year sentence
in order to be kept out of circulation until he is safe. That
may well be true of the average 58 year old. But given the
defendant’s unusually violent criminal history and the fact
that even an elderly person has enough strength to pull the
trigger of a shotgun, the district judge could certainly worry
about what the defendant might do in his seventies. The
curious implication of the defendant’s argument is that no
violent criminal should be kept in prison beyond the age of,
say, 70, but that there should be no limit for white-collar
criminals, since their physical capacity to commit their
preferred types of crime does not diminish with age.
But we have gone on at too great a length about the
infirmities in the defendant’s arguments. These are argu-
ments to address to a sentencing judge, not to an appellate
court. No precise weights can be assigned to such factors
in the sentencing balance as the dangerousness of the
criminal and (as mitigating that dangerousness) his age and
ill health. The striking of a balance of uncertainties
can rarely be deemed unreasonable, and certainly not in this
case.
AFFIRMED.
6 No. 06-1523
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-06