                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 15-3486
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

RICHARD HARRINGTON,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
             No. 09 CR 814-1 — Amy J. St. Eve, Judge.
                     ____________________

    ARGUED AUGUST 9, 2016 — DECIDED AUGUST 19, 2016
                     ____________________

   Before BAUER, POSNER, and SYKES, Circuit Judges.
    POSNER, Circuit Judge. Richard Harrington is a former cli-
ent of the well-known Chicago-based criminal defense law-
yer Beau Brindley, who last year was acquitted in a bench
trial presided over by Judge Leinenweber of the Northern
District of Illinois of charges that Brindley had encouraged
Harrington, a drug dealer, and other clients to lie on the
stand during their criminal trials. Harrington managed to
elude conviction in his own trial, but having pleaded guilty
2                                                      No. 15-3486


to other charges was sentenced by Judge St. Eve, also of the
Northern District of Illinois, to 264 months in prison, subse-
quently reduced because of a retroactive change in the Sen-
tencing Guidelines to 212 months.
    Just over a year after Harrington was sentenced, the gov-
ernment asked for his cooperation in its investigation of
Brindley. After meeting with prosecutors several times, he
testified as a government witness first before the grand jury
and then for an entire day during Brindley’s two-week trial.
Despite Brindley’s acquittal the government filed a motion
under Federal Rule of Criminal Procedure 35(b)(2)(C) asking
Judge St. Eve to reduce Harrington’s sentence by 25 percent
as a reward for his substantial assistance in investigating
and prosecuting Brindley. But the judge granted only a 14
percent reduction, precipitating this appeal by Harrington.
Rather oddly, as it seems to us, in this court the government
is defending Judge St. Eve’s rejection of its request for a larg-
er reduction—not because it is convinced by her reasons
(which are, as we’re about to see, vulnerable to criticism),
but because it thinks she has the ultimate authority to decide
how much of a sentencing reduction to give a cooperating
witness.
   Harrington’s appeal pivots on the judge’s explanation at
the resentencing hearing for why she was rejecting the gov-
ernment’s request for the larger reduction. She said:
        The motion was made under Rule 35, which leaves it to
    the Court’s discretion, if substantial assistance was provid-
    ed, whether or not to grant a motion for a downward de-
    parture.
        The substantial assistance—nothing I am saying is
    suggesting that you [one of the prosecutors] did not be-
    lieve Mr. Harrington was telling the truth. So, I fully be-
No. 15-3486                                                          3


   lieve that you and the other prosecutors believed Mr. Har-
   rington was telling the truth.
        Judge Leinenweber, who is one of the finest trial judges
   in this building, found that the government had not met its
   burden of proof. And I think implicit in that is that Mr.
   Harrington’s testimony didn’t establish beyond a reasona-
   ble doubt that Mr. Brindley and his co-defendant had
   committed the crimes that they were charged with.
        I recognize—and I have not seen the transcript, but
   based on what you are saying, I recognize—that Judge
   Leinenweber did not make any negative findings and did
   not find that you, Mr. Harrington, had lied in his court-
   room.
        As I made fully known to you when you first present-
   ed this motion, it concerns me that you are asking now for
   a benefit for Mr. Harrington having lied to this Court dur-
   ing his trial. I respectfully disagree with you when you
   say, well, everybody has a crime when they come in on a
   Rule 35 and this is no different than that, because certainly
   everybody has the underlying crime that they are convict-
   ed of; but, this goes above and beyond. In this courtroom,
   he came in, in addition to the underlying drug crime, and
   lied to the Court when he was testifying.
       I also gave Mr. Harrington the benefit of the doubt
   during the original sentencing hearing. The probation of-
   ficer and the government both asked for an obstruction of
   justice enhancement and a two-level enhancement. And I
   think I made clear at the sentencing that I could have given
   that, but I did not. So, you got the benefit of that, which,
   given your statements now, you certainly were not entitled
   to. So, that gives me concern.
       Having said that, I recognize that there is value to en-
   couraging cooperators to come forward when they are in
   this situation; and, I recognize there is value to the gov-
   ernment in being able to offer deals and potential lower
   sentences to individuals who are willing to come forward
   to help with difficult prosecutions.
       I will grant your motion, but I am not granting it in
   full. I am not giving, for the reasons I have just articulated,
   the full amount that you are asking for in terms of cooper-
   ation.
       I will grant your motion under Rule 35 and lower Mr.
   Harrington’s sentence from 212 months to 182 months. …
4                                                 No. 15-3486


    Several aspects of this statement are troubling. One is the
remark that “Harrington’s testimony didn’t establish beyond
a reasonable doubt that Mr. Brindley and his co-defendant
had committed the crimes that they were charged with.”
That is, they were acquitted, which may have had nothing to
do with Harrington’s testimony. There is no indication that
he lied at Brindley’s trial or had any incentive to see Brind-
ley acquitted—on the contrary, had Brindley been convicted
this would have enhanced Harrington’s value to the prose-
cution and thereby increased the likelihood that the gov-
ernment would go all out, and succeed, in persuading the
district judge to give him the full 25 percent discount as a
reward. Since Harrington can’t be blamed for Brindley’s ac-
quittal, we can’t understand how the fact that Brindley was
acquitted could figure (as it appears to have done) in Judge
St. Eve’s determination of how large a sentence reduction to
give Harrington.
    Another oddity in the judge's statement is its negative
reaction to what she described as the prosecutor’s “asking
now for a benefit for Mr. Harrington having lied to this
Court during his trial” before Judge St. Eve. That was not
what the prosecutor was asking for—a reward to Harrington
for lying. That would be absurd. The prosecutor was asking
for a reward for Harrington’s efforts to help the government
make its case against Brindley in a trial unrelated to Harring-
ton’s trial for a drug-related offense. The judge did not say
that she thought Harrington had lied at Brindley’s trial—nor
had Judge Leinenweber evinced any suspicion of such a
possibility. Yet her remark about Harrington’s having failed
to prove Brindley’s guilt suggests that she thought he hadn’t
tried hard enough, although there is no evidence to back up
that suggestion. Her intimating that Harrington had failed to
No. 15-3486                                                  5


nail Brindley and that his failure was relevant to how large a
sentence reduction he was entitled to would give cooperat-
ing witnesses, such as Harrington, who hope for a sentence
reduction in exchange for testifying against another criminal
defendant, an incentive to exaggerate—even perhaps to lie—
in testifying.
    Although Harrington cannot be blamed for Brindley’s
acquittal, Judge St. Eve’s statement explaining her denial of
the government's motion implies that she thought that the
size of any sentence reduction to which Harrington would
be entitled would have to be a function not only of his effort
on the government’s behalf but also of his success. Yet obvi-
ously Harrington could not have directed Judge Leinen-
weber’s verdict. And remember the judge's statement that
she wasn't giving Harrington the full sentence reduction re-
quested by the government “for the reasons I have just artic-
ulated”? One of those reasons was his failure to procure the
conviction of Brindley.
    Also missing from her statement is a satisfactory expla-
nation of why she chose to reduce Harrington’s sentence by
only 14 percent. The 25 percent reduction sought by the gov-
ernment would have reduced his sentence from 212 months
to 159 months; the judge’s 14 percent reduction reduced it to
182 months. These are very long sentences—13 years 3
months and 15 years 2 months, respectively—and one would
expect the judge to give a reason for deciding to add nearly
two years to the government’s recommended sentence. She
did say that in testifying in his trial before her he had “lied
to the Court.” That could be the basis of a prosecution for
perjury, but there was no such prosecution. Perjury is a dif-
ferent offense from dealing in illegal drugs. If the judge
6                                                 No. 15-3486


wanted to sentence Harrington to two years in prison for
perjury without the benefit of a prosecution for that offense,
one would expect her to give a reason for having chosen a
two-year term. One might also have expected her to ask the
prosecutor how the figure of 25 percent had been arrived at
in seeking to compensate Harrington and other like-situated
defendant-cooperating witnesses for assisting the govern-
ment in prosecuting other criminals.
    We’re further puzzled by the judge’s remark that “I also
gave Mr. Harrington the benefit of the doubt during the
original sentencing hearing. The probation officer and the
government both asked for an obstruction of justice en-
hancement and a two-level enhancement. And I think I
made clear at the sentencing that I could have given that, but
I did not. So, you [Mr. Harrington] got the benefit of that,
which, given your statements now, you certainly were not
entitled to.” It seems that the judge was expressing regret for
having refused the government’s requests for an obstruction
of justice adjustment and a two-level enhancement (she does
not say what the two-level enhancement would have been
for), and that one reason for in effect adding two years to his
sentence by reducing it by only 14 percent was to compen-
sate the government for her having turned down its two ear-
lier requests. But she doesn’t indicate why she thought those
requests had she granted them would have justified two
more years of imprisonment for Harrington under the statu-
tory sentencing factors, see United States v. Webster, 666 F.3d
1023, 1026 (7th Cir. 2012), and why his "statements now"
showed that he should have gotten the enhancements.
Moreover, the government was not seeking such compensa-
tion––that is, a lower reduction in his sentence to compen-
sate for his not having been subjected to the enhancements.
No. 15-3486                                                7


    We don’t mean to suggest that Judge St. Eve, a very ex-
perienced, conscientious, and highly regarded judge, in fact
erred in denying Harrington the full 25 percent sentence re-
duction that the government sought. She may or may not
have. But a lack of clarity in her statement explaining that
ruling leaves us unable to understand the reasoning process
that led her to reject the government’s request for a 25 per-
cent sentence reduction. Given our uncertainty we think it
best to vacate the district court’s judgment and remand for
reconsideration of the government's motion.
                                  VACATED AND REMANDED.
