Commentary: Criminal appeal frivolous.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit is apparently receiving too many appeals of criminal sentences that it considers frivolous. In an Aug. 9 opinion affirming a defendant's sentence, the court began, "When as in this case a criminal appeal is frivolous, the defendant's attorney should file an Anders motion rather than waste the court's time on a lost cause. We write in the hope of heading off what is assuming the proportions of an avalanche of utterly groundless sentencing appeals." In light of the opinion, defense attorneys need to seriously consider whether to file an appeal, if the only argument is that the district court unreasonably imposed a sentence within the applicable guideline range, and failed to consider the 18 U.S.C. 3553(a) factors. Sam Gammicchia was a political appointee in the office of the Clerk of the City of Chicago. He pleaded guilty to obstruction of justice, based on his role in threatening witnesses in a grand jury investigation into bribery at the clerk's office. He was sentenced to 30 months imprisonment, within the guideline range of 30-37 months, and appealed. On appeal, he argued his sentence was unreasonable, because codefendants received lower sentences, and because of the poor health of both him and his wife. The Seventh Circuit found the appeal frivolous, in an opinion written by Judge Richard A. Posner. Rejecting the first basis as a ground for appeal, the court noted, "Nothing is more common than for codefendants to receive different sentences." Turning to the second basis, the court acknowledged that, regardless of whether the guidelines are mandatory or advisory, a defendant's bad health can be a basis for a below-guideline sentence. Nevertheless, the court concluded the appeal was frivolous, stating, "these are considerations for the sentencing judge, not us, to weigh against the gravity of the defendant's crime and the other factors in section 3553(a)." The court classified the sec. 3553(a) factors as "intangibles, 'weighable' only in a metaphorical sense," and noted that the sentencing judge is in a better position than the court of appeals to weigh them. The court wrote, "The sentencing judge in this case said he did that and we have no reason to doubt that he did. ... The defendant's brief and oral argument present no even colorable argument that the sentence is unreasonably severe."

* case: U.S. v. Gammicchia, No. 06-3325. * issue: Is a sentence within the applicable guideline range...