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Judge Posner talks through some post-Kimbrough concerns for the Seventh Circuit

By Douglas A. Berman

The Seventh Circuit has this intriguing little opinion today which purports "to flag a growing problem created by the Booker decision, which in the name of the Sixth Amendment demoted the federal sentencing guidelines to advisory status."  The ruling in US v. Aguilar-Huerta, No. 08-2505 (7th Cir. Aug. 3, 2009) (available here), comes from the pen of Judge Posner, and here are a few snippets (with cites omitted and the emphasis from the original): A sentencing judge is free, as we said, to reject a guideline as inconsistent with his own penal theories; and rejecting a guideline as lacking a basis in data, experience, or expertise would thus be proper.  But we do not think a judge is required to consider, not a nonfrivolous argument that a guideline produces an unsound sentence in the particular circumstances of the case, but an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation...continue to full post

Full post as published by Sentencing Law and Policy on August 03, 2009 (boomark / email).