                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2382

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

W ILLIAM S. K IRKPATRICK,
                                         Defendant-Appellant.

           Appeal from the United States District Court
                for the Southern District of Illinois.
      No. 3:08-CR-30257-001-MJR—Michael J. Reagan, Judge.



  A RGUED N OVEMBER 17, 2009—D ECIDED D ECEMBER 14, 2009




   Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
  E ASTERBROOK, Chief Judge. After William Kirkpatrick
was arrested for possessing a gun—something his
felony convictions made unlawful, see 18 U.S.C.
§922(g)(1)—he confessed to committing four drug-related
murders. He also told a cellmate that he had arranged a
contract hit on the federal agent who was conducting the
investigation. After investing more than 200 hours in
investigations, agents concluded that Kirkpatrick had
2                                               No. 09-2382

neither killed anyone nor arranged for the agent’s death.
Kirkpatrick pleaded guilty to the felon-in-possession
charge. The Sentencing Guidelines recommended a range
of 37 to 46 months. The judge gave him more—sensibly
so. Lying to a federal agent is a crime, see 18 U.S.C. §1001,
and so is threatening the life of a federal agent, see 18
U.S.C. §115(a)(1)(B). Enhancements on account of an
offender’s additional crimes are normal and proper. See
United States v. Watts, 519 U.S. 148 (1997).
  Kirkpatrick contests not the fact of the enhancement
but its magnitude. The district court imposed a sentence
of 108 months’ imprisonment, more than double the top
of the Guidelines’ range. Kirkpatrick calls this unrea-
sonable: an extra five years in prison is an exceptionally
harsh sentence for wasting 200 hours of federal employees’
time. Whenever a court gives a sentence substantially
different from the Guidelines’ range, it risks creating
unwarranted sentencing disparities, in violation of 18
U.S.C. §3553(a)(6), for most other judges will give sen-
tences closer to the norm. That’s a major reason why
substantial variances from the Sentencing Commission’s
recommendations require careful thought. See Gall v.
United States, 552 U.S. 38 (2007). Cf. Spears v. United
States, 129 S. Ct. 840 (2009); Nelson v. United States, 129
S. Ct. 890 (2009).
  When a variance is carefully explained, appellate
review is deferential. But when a sentence appears to be
chosen arbitrarily, it is problematic. That is the case here.
The judge said that Kirkpatrick’s lies, which put the
case agent in fear and wasted the time of agents who
No. 09-2382                                                   3

had better things to do, justified a higher sentence. That
cannot be gainsaid. But five years’ extra time in prison? The
judge proceeded as if any sentence within the statutory
maximum (10 years) needs no explanation beyond
the conclusion that something more than the top of the
Guidelines’ range is in order. Yet every sentence must
be justified under the criteria in §3553(a), and the
district judge does not appear to have recognized that
leaping close to the statutory maximum creates a risk of
unwarranted disparity with how similar offenders
fare elsewhere—not only because this may overpunish
braggadocio, but also because it leaves little room for
the marginal deterrence of persons whose additional
deeds are more serious (for example, actually putting out
a contract on an agent’s life).
  Before United States v. Booker, 543 U.S. 220 (2005), made
the Guidelines advisory, we had held that departures
must be explained in the Guidelines’ own terms. Thus if
the district court’s reason for an upward departure was
an additional crime, the departure could not exceed
the incremental sentence that would have been appro-
priate had the defendant been charged with, and convicted
of, that additional crime. See United States v. Ferra, 900 F.2d
1057, 1062 (7th Cir. 1990); United States v. Horton, 98 F.3d
313, 317 (7th Cir. 1996); United States v. Rogers, 270 F.3d
1076, 1082 (7th Cir. 2001). Booker and its successors have
changed that rule. The Guidelines are no longer binding,
so a judge need not explain why a sentence differs from
the Sentencing Commission’s recommendation. See
United States v. Bartlett, 567 F.3d 901, 909 (7th Cir. 2009). It
is enough to explain why the sentence is appropriate
4                                               No. 09-2382

under the statutory criteria. But a judge still must start by
using the Guidelines to provide a benchmark that curtails
unwarranted disparities. See Gall, 552 U.S. at 49, and Rita
v. United States, 551 U.S. 338, 351 (2007). And this implies
that, when a judge believes that extra crimes justify extra
punishment, it is wise to see how much incremental
punishment the Sentencing Commission recommends.
Otherwise a particular sentence could get out of line
without the judge recognizing the problem. Before
giving an unusually high sentence on account of addit-
ional crimes, the judge should know that it is unusually
high; without this knowledge the judge cannot give
proper weight to §3553(a)(6).
  Kirkpatrick’s range of 37 to 46 months comes from his
offense level of 20 and criminal history category of II.
Suppose his lying were treated as incompatible with
accepting responsibility, costing Kirkpatrick the two-
level reduction he had received. That would produce a
total of 22 and a recommended range of 46 to 57 months.
(Kirkpatrick’s offense level of 20 already included an
enhancement for obstructing justice.) If Kirkpatrick also
were charged with, and convicted of, lying to federal
agents and making threats designed to intimidate agents,
the offense level could reach 24 (depending on how
the grouping rule, U.S.S.G. §3D1.2, treated the §1001 and
§115 convictions, which have lower base levels than the
felon-in-possession crime). At offense level 24 and
criminal history category II, Kirkpatrick’s recommended
range would have been 57 to 71 months. There are some
other ways of classifying his additional acts that might
produce higher ranges, but level 24 seems most likely. To
No. 09-2382                                                 5

get as high as level 28 (which corresponds to a range of
87 to 108 months), the district judge would have to find
that Kirkpatrick actually set out to have the case agent
murdered. Given the judge’s belief that Kirkpatrick was
all bark and no bite, however, the Sentencing Commis-
sion’s recommendation is for a sentence substantially
below 108 months.
  Booker and its successors mean that this recommenda-
tion is not conclusive. But before exercising discretion
the judge should know what that recommendation is,
and thus how Kirkpatrick’s sentence will compare
with the punishment of similar persons elsewhere. The
Supreme Court has never questioned the principal goal
of the Sentencing Reform Act of 1984: to curtail the
variable sentencing caused by different judges’ perceptions
of the same criminal conduct. The allowable band of
variance is greater after Booker than before, but intellectual
discipline remains vital. “[A] motion to [a court’s] discre-
tion is a motion, not to its inclination, but to its judgment;
and its judgment is to be guided by sound legal princi-
ples.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14692d)
(C.C. Va. 1807) (Marshall, C.J.). We think that the
district court would benefit from the guidance offered by
the Sentencing Commission’s approach. The sentence
therefore is vacated, and the case is remanded for pro-
ceedings consistent with this opinion.




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