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Before POSNER, Circuit Judge.

Defendant challenges the district judge’s failure to delay the sentencing hearing for five months, until the 2007 version of the federal sentencing guidelines went into effect. Had he been sentenced under the later guideline, he would still have been subject to the 20-year statutory minimum sentence because of his prior drug conviction, but because he would have had only one prior conviction in his criminal history he would have been eligible for “safety valve” relief under 18 U.S.C. § 3553(f).

Under the regime of Booker, the judge is to treat the guidelines as only advisory even in a safety-valve case. United States v. Quirante, 486 F.3d 1273, 1276 (11th Cir. 2007).  Defendant acknowledges that the decision whether to delay a sentencing hearing is discretionary, but points out that a discretionary ruling that is infected by material error cannot stand.

The decision to grant or deny a continuance (the conventional term for an interim delay in a litigation) is a management tool. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). 

Sentencing judges can properly grant continuances to await clarification of the law, e.g., United States v. Brown, No. 00-CR-939, 2004 WL 1879949, at *1 (N.D. Ill. Aug. 18, 2004), or, what is analytically similar, if an impending change in law would require modification of a judgment entered on the basis of the law currently in force. Hallstrom v. City of Rockford, 157 N.E.2d 23, 25 (Ill. 1959).  These are examples of continuances designed to promote efficient case management.

The only case that Foster cites for the propriety of a “substantive” continuance, United States v. Madrigal, 327 F.3d 738 (8th Cir. 2003), does not support his position (the actual holding of Madrigal is inconsistent with our decision in United States v. Alvarado, 326 F.3d 857, 862 (7th Cir. 2003), but that is of no moment in this case).

Madrigal is about the propriety of granting a continuance to allow a defendant more time to make the proffer required for safety-valve relief (see 18 U.S.C. § 3553(f)(5)) when his earlier failure to do so was excusable. It has nothing to do with a judge’s wanting to make a different law apply by postponing sentencing.

It is improper for a judge to grant (or deny) a continuance for the very purpose of changing the substantive law applicable to the case.

United States v. Garcia, No. 92-50675, 1993 WL 263459 (9th Cir. July 13, 1993) (per curiam), notes that “the opportunity for a better sentence under a new Amendment to the Guidelines is not a legitimate reason to request a continuance.” Id. The court added that “granting a continuance on this basis would greatly inconvenience a district court’s ability to impose sentence as defendants would repeatedly seek continuances and cause delays upon learning of Amendments to the Guidelines that may benefit the defendant but are yet to take effect.” Id.

In short, a sentencing judge cannot rightly say, “I do not like the current guidelines, so I am continuing the sentencing hearing in the hope and expectation (in this case, the certainty) that they will change.” In cases in which the guidelines are purely advisory, the judge can regard or disregard them whether or not they are currently in force.

The power to grant or deny a continuance is abused when it is exercised not in order to manage a proceeding efficiently but in order to change the substantive principles applicable to a case.

Furthermore, the Sentencing Commission, not the courts, has been given the authority to decide whether to make a guidelines change prospective or retroactive. The sentencing judge can shorten the prison term to which he has sentenced a defendant because the Commission reduced the sentencing range after sentence was imposed only if the Commission has issued a policy statement authorizing such retroactive application of its guidelines change.  The Commission has not authorized such application with respect to the guidelines amendment that defendant wants to be sentenced under.

It is especially improper for a judge to delay sentencing because he wants to give the defendant a lighter (or a heavier) sentence than the current law permits, for “the court must impose sentence without unnecessary delay.” Fed. R. Crim. P. 32(b)(1).


For the full opinions visit the 7th Circuit Court of Appeals Web Site.

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