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GOIN’ HOME

Terry Taylor was a felon in possession of a shotgun, ending up with a 300-month sentence. Luckily for Terry, Johnson v. United States invalidated the sentence, and he was resentenced last year to 176 months.

An improvement to be sure. The 54-year (and nearly blind) Terry had already served 160 months by the time he was resentenced, and he’s now in a halfway house with release set for December.

You’d be forgiven for thinking that this one’s over, but on Monday, the 7th Circuit weighed in on Terry’s side in a decision notable for its pro-inmate cant. It seems the new, lower sentence Judge Philip Reinhard imposed on Terry was still more than 100 months above his new Guidelines range. In fact, when Terry was resentenced, the Government and the Court’s own Probation Officer suggested he just be given time served and sent home.

District Judge was unswayed. He held that the “gravity” of Terry’s criminal history before the gun conviction and the fact that while he was serving his sentence, had filed complaints and a lawsuit critical of judicial behavior (Terry supposed a conspiracy among judges and prosecutors). Judge Reinhard supposed that, if released right away, Terry might follow up his complaints with criminal harassment. Judge Reinhard thought these two grounds were predictive of the likelihood that upon release from prison, Terry would commit further crimes.

One of the judges Terry named as being part ofdrew Judge Posnas part of the panel hearing this sentence appeal. Unlike Judge Reinhard, Judge Posner has thick skin. Judge Posner complained that the District Court’s basis for the above-Guidelines were “flimsy grounds. Most of the defendant’s criminal history prior to the shotgun incident consisted of driving offenses,” Judge Posner wrote, “and he presumably can’t drive any longer because of his vision problem. As for pestering federal judges (including the author of this opinion!) with seemingly groundless complaints about how he’s been treated by the criminal justice system, he has a constitutional right to petition the government for redress of grievances, though if he becomes an utter nuisance his petitioning activity can be reined in. He has not threatened anybody with violence or other criminal harm, and the judge offered no adequate reason for inferring a risk of recidivism from the contents of his complaints.”

The 7th Circuit was clearly troubled that Terry had spent nearly 12 years in prison for a “crime that caused no harm (except perhaps to frighten the person at whom the defendant supposedly brandished his shotgun at the day before he was arrested)…” and “his decade-plus in prison should provide adequate deterrence to anyone thinking of emulating the defendant’s crimes.” The Circuit was apparently convinced that some of Judge Reinhard’s basis for continuing to hammer Terry with an above-Guidelines sentence was that he didn’t much like Terry’s pro se ravings. That was hardly justification, the appellate panel suggested, for Judge Reinhard to base his sentencing decisions on “sheer speculation.”

The Court said that time is of the essence, because Terry will be done in 4 months even with the old, discredited sentence. The Court of Appeals therefore issued the mandate “forthwith” and reminding Taylor’s lawyer he could ask for Judge Reinhard for bail. The reminder served notice on the District Judge, too, that he had better grant it.

United States v. Taylor, Case No. 16-1019 (7th Cir.   Aug. 15, 2016)