United States v. Francisco Castillo , 695 F.3d 672 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2792
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F RANCISCO C ASTILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 907-1—Samuel Der-Yeghiayan, Judge.
S UBMITTED JULY 26, 2012—D ECIDED A UGUST 22, 2012
Before P OSNER, M ANION, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The defendant pleaded guilty to
conspiring to make and sell false identification docu-
ments, such as documents identifying the bearer as a
permanent resident of the United States, in violation of
18 U.S.C. §§ 1028(a)(1), (2), (f). His guidelines sentencing
range was 37 to 46 months, but the judge sentenced
him to 60 months, as urged by the government, a sentence
that although above the guidelines range was well within
2 No. 11-2792
the statutory maximum of 15 years. §§ 1028(b)(1)(A), (B).
He has appealed, challenging his sentence, but his
lawyer has filed an Anders brief in which he argues
that there is no valid ground for challenging the
sentence and asks to be allowed to withdraw from rep-
resenting the defendant.
We write to clarify an ambiguity concerning the
scope of appellate review of an above-guidelines sen-
tence. We have said that “the farther the judge’s sentence
departs from the guidelines . . . the more compelling the
justification based on factors in section 3553(a) that the
judge must offer in order to enable the court of appeals to
assess the reasonableness of the sentence imposed.” United
States v. Courtland, 642 F.3d 545, 550 (7th Cir. 2011), quoting
United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005);
see also Gall v. United States, 552 U.S. 38, 50 (2007);
United States v. Bradley, 675 F.3d 1021, 1025 (7th Cir. 2012)
(per curiam). The ambiguity is in the word “farther.” It can
be conceived of in either relative or absolute terms. A
sentence of 60 months is 30 percent longer than a
sentence of 46 months (the top of the applicable guide-
lines range in this case); and a 30 percent increase is
large in relative terms. But in absolute terms, given the
severity of federal criminal punishments, it is a smallish
14 months; the average federal prison sentence in 2009
was 57 months. Mark Motivans, “Federal Justice
Statistics 2009—Statistical Tables” 27 (Bureau of Justice
Statistics, U.S. Dep’t of Justice, Dec. 2011) (table 5.4),
http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09st.pdf (visited
Aug. 9, 2012).
No. 11-2792 3
It seems to us that the relative is generally more impor-
tant than the absolute, as is implicit in a number of our
previous decisions. See United States v. Snyder, 635 F.3d
956, 961 (7th Cir. 2011) (“the sentence imposed by the
court was over two-and-a-half times greater than [the
guidelines range]”); United States v. Munoz, 610 F.3d 989,
995 (7th Cir. 2010) (sentence “roughly 50% more than his
advisory guideline range”); United States v. Miller, 601
F.3d 734, 739-40 (7th Cir. 2010) (“sentence that was fifty
percent above the high end of the advisory Guidelines
range”); United States v. Kirkpatrick, 589 F.3d 414, 415 (7th
Cir. 2009) (“more than double” the guidelines range);
United States v. Jackson, 576 F.3d 465, 470 (7th Cir. 2009)
(same); United States v. Higdon, 531 F.3d 561, 563 (7th
Cir. 2008). The guidelines range is the Sentencing Com-
mission’s estimate of the reasonable range of punish-
ments for the defendant’s offense. Usually (an important
qualification, as we’re about to see), a judge who
imposes a sentence far above the top or far below the
bottom of that range is challenging the Commission’s
penal judgment, and given that the Commission’s knowl-
edge of penology exceeds that of most judges, the judge
needs to provide more in the way of justification than
if he were departing incrementally.
Guidelines ranges are inherently arbitrary, so had the
judge in this case sentenced the defendant to 47 months
instead of the guideline maximum of 46 it would not have
been a significant challenge to the Commission’s penal
judgment and so would not have required much in the
way of justification. A 30 percent departure requires
more; “substantial variances from the Sentencing Com-
4 No. 11-2792
mission’s recommendations require careful thought.”
United States v. Kirkpatrick, supra, 589 F.3d at 415. Yet
less thought is necessary when the applicable guide-
line is “not the product of the Commission acting in
‘its characteristic institutional role,’ in which it typically
implements guidelines only after taking into account
‘empirical data and national experience.’ ” United States v.
Reyes-Hernandez, 624 F.3d 405, 418 (7th Cir. 2010), quoting
Kimbrough v. United States, 552 U.S. 85, 109 (2007). And
that is the case here. The Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. 104-208,
110 Stat. 3009, required the Commission to increase
the base-offense level for the false-document offense
by two levels and the sentencing enhancement for
number of documents by “at least 50 percent.” Id.,
§§ 211(b)(2)(A), (B). The Act also directed the Commis-
sion to “consider whether any other aggravating or miti-
gating circumstances warrant upward or downward
sentencing adjustments,” § 211(b)(2)(E), and shortly
afterward the Commission added to the guideline, as
we’ll see, an open-ended upward-departure provision.
In these circumstances, the judge, not having to confront
an exercise of considered penal expertise (so far as ap-
pears) by the Commission, was under less compulsion
to provide a comprehensive explanation for giving a
sentence substantially above the top of the guidelines
range.
We acknowledge that focus on the sentencing judge’s
percentage deviation from the guidelines range can
mislead, at least when the sentence is below rather than,
as in this case, above the sentencing range; an example
No. 11-2792 5
given in United States v. Gall, supra, 552 U.S. at 48, is that
“a sentence of probation [the sentence the Court was
reviewing] will always be a 100% departure regardless
of whether the Guidelines range is 1 month or 100 years.”
But it’s hard to see how a court can carry out the
command of Gall to require a justification “sufficiently
compelling to support the degree of the variance,” 552 U.S.
at 50 (emphasis added)—“degree” being a relative
rather than absolute measure—without at least con-
sidering the percentage deviation. We are not the only
court to give weight to it. See United States v. Ressam, 679
F.3d 1069, 1089-90 (9th Cir. 2012) (en banc); United States
v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc); In re
Sealed Case, 527 F.3d 188, 192 (D.C. Cir. 2008). Granted,
there is resistance, see, e.g., United States v. Burns, 577
F.3d 887, 905 n. 8 (8th Cir. 2009) (en banc); United States
v. Evans, 526 F.3d 155, 166 n. 5 (4th Cir. 2008)—and a
note of ambivalence in our own opinions in United States
v. Brown, 610 F.3d 395, 398 (7th Cir. 2010), and United
States v. Omole, 523 F.3d 691, 698 n. 1 (7th Cir. 2008).
The judge’s failure in the present case to give
extended consideration to the appropriateness of a 30
percent departure, large as that departure is in relative
terms, is easily excused. The defendant’s lawyer, while
recommending a much lower sentence—a below-guide-
lines sentence of 30 months—did not challenge the gov-
ernment’s recommendation for 60 months on the
ground that it exceeded the top of the guidelines range.
More important is a curious feature of the applicable
guideline. The guideline range for the false-document
offense rises in stages as the number of false identification
6 No. 11-2792
documents increases—but only up to 100. U.S.S.G.
§ 2L2.1(b)(2). It is unclear why the count stops at 100, a
suspiciously round number. Unclear to the Sentencing
Commission itself, perhaps, because Application Note 5
to the guideline says that if the defendant’s crime
involves substantially more than 100 documents an
upward departure “may be warranted.” This is what is
called an “encouraged departure,” Koon v. United States,
518 U.S. 81, 94 (1996); see also United States v. Miller, 343
F.3d 888, 891-92 (7th Cir. 2003)—encouraged by Congress,
as we pointed out.
A departure is a departure; it is a sentence above or
below the applicable guidelines range. United States v.
Guyton, 636 F.3d 316, 319-20 (7th Cir. 2011); see also
United States v. Ortega-Galvan, 682 F.3d 558, 562 (7th Cir.
2012). And though the encouragement to depart in
cases like this one came from Congress rather than
from the Commission and is not based (so far as ap-
pears) on any empirical study, it makes common sense
and provided a solid basis for a substantial increase
in sentence above the top of the guidelines range in
this case.
Under the guideline, as the number of false docu-
ments increased from 99 to 100 or more, Castillo’s
offense level rose by three points, §§ 2L2.1(b)(2)(B), (C),
which translates into an increase in the guidelines range
from 27-33 months to 37-46 months—a 39 percent
increase in his maximum guidelines sentence. He was
estimated to have been responsible for 2800 documents.
We don’t see how imposing a sentence 30 percent above
No. 11-2792 7
the guidelines range could be thought excessive punish-
ment for 28 times the number of fraudulent documents
that triggers the highest guideline sentence, when a
1 percent increase in documents (from 99 to 100) would
have increased his maximum guideline sentence by
39 percent. It thus was icing on the cake that the
judge noted additional aggravating factors besides the
number of documents, such as the defendant’s marketing
computer software for producing still more counterfeit
personal-identification documents.
United States v. Burns, supra, 577 F.3d at 905 n. 8,
along with other Eighth Circuit decisions cited in it, and
United States v. Morace, 594 F.3d 340, 345 (4th Cir. 2010),
recommend using number of offense levels rather than
percentage deviations in sentence length to gauge
the magnitude of a variance between the sentence
imposed and the guidelines sentence. So let’s do that as
a check on our analysis. The guideline in question
provides no increase in offense levels as the number
of documents increases from 1 to 5. When it hits 6, how-
ever, there is a 3-level increase; at 25 there is a 6-level
increase and at 100 a 9-level increase. So from 6 to 100
each quadrupling of the number of documents adds three
offense levels. If we extrapolate, 400 documents would
earn a 12-level increase and 1600 documents a 15-level
increase. This would mean that just as going from
6 documents to 100 (two consecutive quadruplings)
generates a 6-level increase (3 levels from 6 to 25 and
3 more from 25 to 100), going from 100 to 400 and
then 1600 (again, two consecutive quadruplings) would
generate a further 6-level increase. So if the defendant
8 No. 11-2792
in our case had produced only 1600 documents rather
than 2700, the “encouraged departure” by the district
judge would be symmetrical with the applicable guide-
line (so the defendant actually got a bit of a break); and
this is another way of seeing that the variance from
the guideline range was not so extreme as to require
a more elaborate justification than the judge offered.
We therefore accept counsel’s motion to withdraw
and dismiss the appeal.
8-22-12