Opinion

United States v. Patrick McGuire

  • 835 F.3d 756
  • 2016 U.S. App. LEXIS 16063
  • 2016 WL 4527557
Court
Court of Appeals for the Seventh Circuit
Filed
Aug 30, 2016
Status
Published
Author
Hamilton
On the bench
Rovner, Sykes, Hamilton
Nature of suit
criminal
Cited by
6 cases
Authority
More cited than 12.4%

The opinion

HAMILTON, Circuit Judge,

concurring.

While I dissented in United States v. Hurlburt, No. 14-3611, 835 F.3d 715 (7th Cir. 2016) (en banc), it is now the law of the circuit. As Judge Sykes explains, it requires a remand in this case for re-sentencing. On remand, however, the district judge will have the power and the right to impose the same sentence she did in the first place. See Hurlburt, 835 F.3d at 728-29 (Hamilton, J., dissenting). The advice from the Sentencing Guidelines will be different on remand, but that should not necessarily change the judge’s assessment of the relevant sentencing factors under 18 U.S.C. § 3553 (a). In particular, the criminal history provisions in the Guidelines have always been somewhat arbitrary. (For example, a defendant receives the same three points for a bar fight that produced a fourteen-month sentence and a first-degree murder conviction. See U.S.S.G. § 4A1.1.) That’s why the Guidelines have always encouraged departures on the basis that a defendant’s guideline calculation of criminal history is under- or over-representative. U.S.S.G. § 4A1.3. On remand, the judge needs to exercise her judgment under § 3553(a).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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