It seems unlikely that 7th Circuit Judge Richard Posner intended his opinion in  United States v. Castillo to come off this way, but even without an ostrich reference, it can’t be helped.

We write to clarify an ambiguity concerning the scope of appellate review of an above-guidelines sentence.  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)…. 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 guidelines 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.

While it’s good that Judge Posner recognized the ambiguity in the earlier holding, although one would have suspected that at the time of writing “farther,” a smart judge like him would have realized it was a bit too glib to pass off in balancing the extent of departure with the extent of justification under reasonableness review. 

But then the circuit adds this gem to the mix:

It seems to us that the relative is generally more important than the absolute, as is implicit in a number of our previous decisions.  The guidelines range is the Sentencing Commission’s estimate of the reasonable range of punishments 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 knowledge of penology exceeds that of most judges, the judge needs to provide more in the way of justification than if he were departing incrementally.

Did I miss something?  Did the United States Sentencing Commission gain some magical power of penology when no one was looking?  All this time, the understanding was that the commission’s mandate was to standardize sentencing across the nation, so that a judge in California wouldn’t sentence a defendant to 10 years for the same crime that bought him 20 years in New York.  It wasn’t that they held some mystical power to know the intrinsically “right” sentence without any regard for the individual characteristics of the offense or the human being involved.

Even so, the court fails to provide any certain guidance, leaving itself wiggle room to ignore its own test (relative is generally more important than absolute), and thus fails to provide guidance to sentencing courts as to the extent of justification that will be required to uphold a departure on review.  And then Judge Posner stirs up muddy waters even further:

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.

The Guidelines ranges are inherently arbitrary?  Did he really write that?  If so, then they are by definition unconstitutional, as courts are precluded from acting arbitrarily, and therefore can’t rely on arbitrary guidelines to justify a sentence. And yet the decision expressly approves of a sentence that “would not have required much in the way of justification”?  So basically, the 7th Circuit has endorsed unjustifiable reliance on minor departures from arbitrary guidelines?

A 30 percent departure requires more; “substantial variances from the Sentencing Commission’s recommendations require careful thought.”

This rationale is astounding.  All this time, one would have thought that any sentence, every sentence, required careful thought.  Well, don’t I feel foolish now, learning that in the absence of a substantial (what that means) relative variance from the inherently arbitrary guidelines (which are advisory, though stemming from penologists who know better than any judge what sentence to impose), an utterly mindless sentence of, say, 480 months is just hunky-dory as long as it’s on the grid.

Perhaps Judge Posner is using this decision as a backdoor means of pointing out the absurdity of federal sentencing, but if this is a cynical means of making his point, it eludes me.  Rather, it seems far more likely that this reflects the sad state of reasonableness review, the acknowledgement of both deference and arbitrariness of the Sentencing Guidelines without similar recognition that there is no magical “right” sentence.  It’s poorly executed art that courts pretend is a science in order to lift the burden off their judicial shoulder and make judges not feel too badly about their imposing years, decades of imprisonment that can’t find any rational basis.

But rarely has a court inadvertently admitted what a pathetic joke federal sentencing has become.  Maybe Judge Posner would have done better to throw in a few ostrich references, so at least we could all have a chuckle over this otherwise nightmarish decision.

And by the way, even if the upward departure is only 10%, like a year over 121 months, it’s a year of some guy’s life.  It still matters. It’s still worthy of justification. Don’t give away other people’s lives so easily.

H/T Berman