                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4503
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.

CHRISTOPHER K.P. REUTER,
                                             Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
                 for the Central District of Illinois.
            No. 02-10011-09—Joe Billy McDade, Judge.
                         ____________
  SUBMITTED AUGUST 23, 2006—DECIDED SEPTEMBER 19, 2006
                         ____________


  Before BAUER, POSNER, and WOOD, Circuit Judges.
  POSNER, Circuit Judge. Christopher Reuter pleaded
guilty to conspiracy to distribute illegal drugs. 21 U.S.C.
§§ 841(b)(1)(A), 846. The maximum guidelines sentence
for his 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 (after the judge made various adjustments
called for by the guidelines) raised Reuter’s guidelines range
to 360 to 480 months. The judge sentenced him to 360
months, and he appeals. His lawyer has filed an Anders
2                                                 No. 05-4503

brief, arguing that there is no nonfrivolous ground for
an appeal.
  The lawyer is right even if, as his brief notes, the judge
was required to find by “clear and convincing” evidence,
not a mere preponderance, that Reuter had committed the
murder. He had confessed and his confession had been
amply corroborated.
   The Third Circuit, picking up a hint in McMillan v.
Pennsylvania, 477 U.S. 79, 88 (1986), had held in United States
v. Kikumura, 918 F.2d 1084, 1100-01 (3d Cir. 1990), that proof
by clear and convincing evidence is required when a finding
will so lengthen the defendant’s sentence as to make it a
case of the tail (the judge’s finding at the sentencing hear-
ing) wagging the dog (the sentence that the evidence at trial,
or as here the evidence supporting the guilty plea, would
have warranted). We have occasionally indicated sympathy
for this position, e.g., United States v. Johnson, 342 F.3d 731,
735-36 (7th Cir. 2003); United States v. Smith, 308 F.3d 726,
744-45 (7th Cir. 2002), as have other courts, see, e.g., United
States v. Anderson, 243 F.3d 478, 485-86 (8th Cir. 2001), while
never actually reversing a sentence on that ground, even
though, as Johnson points out, we have upheld sentences
with awfully high ratios of tail to torso. 342 F.3d at 736. (In
United States v. Rodriguez, 67 F.3d 1312, 1323 (7th Cir. 1995),
for example, the tail raised the defendant’s sentence from 63
months to life.) In United States v. Boos, 329 F.3d 907, 909-10
(7th Cir. 2003), while stopping short of rejecting the
Kikumura rule, we expressed skepticism about its va-
lidity and noted that in United States v. Masters, 978 F.2d 281,
286-87 (7th Cir. 1992), we had “castigat[ed]” the reasoning
in Kikumura.
 The debate has, we believe, been rendered academic by
United States v. Booker, 543 U.S. 220, 264-65 (2005)—as the
No. 05-4503                                                  3

Third Circuit, overruling Kikumura, has now held. United
States v. Grier, 449 F.3d 558, 570 (3d Cir. 2006). In contrast,
the Eighth Circuit, after Booker but before Grier, reaffirmed
its adoption of the Kikumura rule, United States v. Archuleta,
412 F.3d 1003, 1007 (8th Cir. 2005), but without discussion
beyond the summary statement that Booker had changed
nothing; as usual in a Kikumura case, the court went on to
find that the tail had not wagged the dog in the case before
it. Id. at 1008.
   With the guidelines no longer binding the sentencing
judge, there is no need for courts of appeals to add epicycles
to an already complex set of (merely) advisory guidelines by
multiplying standards of proof. The judge is cabined, but
also liberated, by the statutory sentencing factors. 28 U.S.C.
§ 3553(a); United States v. Cunningham, 429 F.3d 673, 676 (7th
Cir. 2005). Unlike the guidelines, they bind, but they are
broad enough and loose enough to allow the judge to dip
below the guidelines range if he is justifiably reluctant to
impose a sentence most of which rests entirely on a finding
of fact supported by a mere preponderance of the evidence
(though in this case, to repeat, the evidence was overwhelm-
ing). Section 3553(a)(2)(A) includes among the factors to be
considered in sentencing “the need for the sentence
imposed . . . to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment
for the offense.” A judge might reasonably conclude that a
sentence based almost entirely on evidence that satisfied
only the normal civil standard of proof would be unlikely to
promote respect for the law or provide just punishment
for the offense of conviction. That would be a judgment for
the sentencing judge to make and we would uphold it so
long as it was reasonable in the circumstances. United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
4                                             No. 05-4503

  The motion of the defendant’s lawyer to withdraw is
granted and the appeal is dismissed.

A true Copy:
       Teste:

                       _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                 USCA-02-C-0072—9-19-06
