Seventh Circuit rules tail can wag dog at sentencing.

• Author: Ziemer, David

Byline: David Ziemer

It has long been an open question in the Seventh Circuit whether a trial court's finding of fact at sentencing can have such a significant impact on the defendant's sentence that the standard of proof must be clear and convincing, rather than a mere preponderance, lest the "tail wag the dog."

On Sept. 19, the court held the issue moot, because the guidelines are now only advisory.

In the case, Christopher Reuter pleaded guilty in Illinois federal court to conspiracy to distribute illegal drugs. The top of the guidelines range for the offense would have been 105 months in prison, had the judge not found at the sentencing hearing that Reuter had committed a murder in the course of the conspiracy.

This finding, among other adjustments, raised Reuter's guidelines range to 360 to 480 months. The judge sentenced him to 360 months, and Reuter appealed.

Reuter's attorney filed an Anders brief, arguing that there are no nonfrivolous grounds for an appeal.

In the Anders brief, Reuter's attorney asserted that, even if the district court was required to find by "clear and convincing" evidence that Reuter had committed the murder, he had confessed and the confession was amply corroborated, so the error would be harmless.

In an opinion by Judge Richard A. Posner, the Seventh Circuit agreed, and dismissed the appeal. The court went further, however, holding that, under advisory guidelines, the issue is now moot.

The "tail wagging the dog" theory has its origins in McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986). The court there found no indication that a state's sentencing scheme had resulted in the judge's factual findings at sentencing operating as a "tail which wags the dog of the substantive offense."

The Third Circuit subsequently interpreted this language to mean that proof by clear and convincing evidence is required, when a finding of fact by the judge will so lengthen the defendant's sentence that it does rise to the level of the tail wagging the dog. U.S. v. Kikumura, 918 F.2d 1084, 1100-01 (3d Cir. 1990).

Since Kikumura, the Seventh Circuit has sometimes expressed agreement with the position - U.S. v. Johnson, 342 F.3d 731, 735-36 (7th Cir. 2003); U.S. v. Smith, 308 F.3d 726, 744-45 (7th Cir. 2002) - and sometimes disagreement - U.S. v. Boos, 329 F.3d 907, 909-10 (7th Cir. 2003); U.S. v. Masters, 978 F.2d 281, 286-87 (7th Cir. 1992).

However, the court has never expressly accepted or rejected the theory.

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