                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2505

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

JOSE A GUILAR-H UERTA,

                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 07 CR 198—Virginia M. Kendall, Judge.



No. 08-3508

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

D ERRICK S HAREEF,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 06 CR 919—David H. Coar, Judge.



       A RGUED JULY 7, 2009—D ECIDED A UGUST 3, 2009
2                                       Nos. 08-2505, 08-3508

    Before P OSNER, K ANNE, and SYKES, Circuit Judges.
   P OSNER, Circuit Judge. We have consolidated these
two sentencing appeals in order to flag a growing
problem created by the Booker decision, which in the
name of the Sixth Amendment demoted the federal
sentencing guidelines to advisory status. Before there were
guidelines, a federal judge in picking a sentence ranged
essentially at will within the typically broad statutory
sentencing limits, appellate review of the choice of sen-
tence within those limits being minimal, even perfunctory.
See Wasman v. United States, 468 U.S. 559, 563 (1984);
United States v. Barnes, 907 F.2d 693, 695 (7th Cir. 1990);
United States v. Tomko, 562 F.3d 558, 564 (3d Cir. 2009). The
guidelines sought to narrow judicial discretion by
creating sentencing ranges inside the statutory mini-
mums and maximums and limiting departures from the
applicable range. Booker unbound the sentencing judges
from the guidelines; and while the judges are still
required to consider them, Nelson v. United States, 129 S.
Ct. 890, 891-92 (2009) (per curiam); Rita v. United States,
127 S. Ct. 2456, 2465 (2007); United States v. Smith, 562
F.3d 866, 872 (7th Cir. 2009); United States v. Quinones-
Medina, 553 F.3d 19, 22 (1st Cir. 2009), they may not
ignore substantial arguments for deviating, United States
v. Castaldi, 547 F.3d 699, 706 (7th Cir. 2008), and can if they
wish reject the penal theories that inform the guidelines
and (within reason) devise and follow a different penal
theory. Spears v. United States, 129 S. Ct. 840, 843-44 (2009);
Kimbrough v. United States, 128 S. Ct. 558, 575 (2007);
United States v. Herrera-Zuniga, No. 08-1540, 2009 WL
Nos. 08-2505, 08-3508                                         3

1940382, at *14 (6th Cir. July 9, 2009); United States v.
Russell, 564 F.3d 200, 204 (3d Cir. 2009).
  But this new approach to sentencing, coupled with the
requirement that appellate review of sentences is now to
be robust, albeit deferential, Gall v. United States, 128 S. Ct.
586, 597 (2007); United States v. Higdon, 531 F.3d 561, 562-
63 (7th Cir. 2008); United States v. Tomko, supra, 562 F.3d
at 567, unlike the attitude of almost total deference that
prevailed before the guidelines were promulgated, invites
defendants to so widen the scope of the sentencing
hearing as to place (or at least try to place) an extremely
heavy burden on the sentencing judge—as these two
appeals illustrate.
  Defendant Aguilar-Huerta came to the United States
from Mexico with his parents when he was a child. At
age 17 he pleaded guilty in state court to gang-related
drive-by shootings and was sentenced to six years in
prison. Paroled after two years, he was deported to Mexico
but returned without permission a year later. Two years
after that he was arrested and prosecuted for being ille-
gally in the United States after having been deported. 18
U.S.C. § 1326(a). He challenges the 46-month below-
guidelines sentence imposed for that offense.
  The guidelines required a 16-level increase in his
offense level because he had been deported after
being convicted of an aggravated felony, U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), and this, together with other guide-
lines adjustments, produced a guidelines sentencing
range of 57 to 71 months. Although he received a below-
range sentence, which can rarely be attacked successfully
4                                       Nos. 08-2505, 08-3508

on appeal, United States v. George, 403 F.3d 470, 473 (7th Cir.
2005); United States v. Bendtzen, 542 F.3d 722, 729 (9th Cir.
2008); United States v. Curry, 536 F.3d 571, 573 (6th 2008), he
argues that the Sentencing Commission failed to fulfill
its “institutional role” when it prescribed the 16-level
enhancement. He points out that the enhancement “is not
the result of the Commission’s utilizing empirical data,
national experience, or input from a range of experts in
the field.” The guideline has been criticized on that
basis before. United States v. Macias-Prado, No. 08-CR-30,
2008 WL 2337088, at *3 (E.D. Wis. June 6, 2008); United
States v. Galvez-Barrios, 355 F. Supp. 2d 958, 961-64 (E.D.
Wis. 2005); see also United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009); United States v. Loredo-
Olvera, No. 08-2769, 2009 WL 1350191, at *3 (8th Cir.
May 15, 2009) (unpublished); United States v. Jimenez-
Hernandez, No. 08-4041, 2008 WL 4748580, at *1 (4th Cir.
Oct. 30, 2008) (unpublished).
  A sentencing judge is free, as we said, to reject a guide-
line as inconsistent with his own penal theories; and
rejecting a guideline as lacking a basis in data, experience,
or expertise would thus be proper. But we do not think
a judge is required to consider, not a nonfrivolous argu-
ment that a guideline produces an unsound sentence in
the particular circumstances of the case, but an argument
that a guideline is unworthy of application in any case
because it was promulgated without adequate delibera-
tion. He should not have to delve into the history of a
guideline so that he can satisfy himself that the process
that produced it was adequate to produce a good guide-
line. See United States v. Huffstatler, No. 08-2622, 2009 WL
Nos. 08-2505, 08-3508                                      5

1855161, at *3 (7th Cir. June 30, 2009); United States v.
O’Connor, 567 F.3d 395, 398 (8th Cir. 2009); United States v.
Mondragon-Santiago, supra, 564 F.3d at 366-67. For if he
is required to do that, sentencing hearings will become
unmanageable, as the focus shifts from the defendant’s
conduct to the “legislative” history of the guidelines.
  Moreover, while if a defendant makes a nonfrivolous
argument that a guideline is invalid the judge should
consider the argument, there is no harm done if he
doesn’t consider it because the defendant can renew the
argument on appeal; validity issues are issues of law.
Aguilar-Huerta does not argue that the 16-level-increase
guideline is invalid, but only that the district judge, as
a matter of sentencing discretion, should not apply
it—ever. But what is the space between invalidating a
guideline and refusing ever to apply it because it’s no
good? We don’t think there is any, and therefore there
would be little point in remanding for resentencing so
that the defendant could argue invalidity—which is
what his argument amounts to, though not labeled as
such—to the district judge.
  Making a legal argument in the guise of an appeal to
sentencing discretion is also the principal vice in Shareef’s
appeal. He pleaded guilty to attempting to use a
weapon of mass destruction, 18 U.S.C. § 2332a(a)(2),
namely hand grenades with which he wanted to kill
shoppers at a mall. For this offense the guidelines sen-
tencing range was 360 months to life; the judge sentenced
him to 420 months. At the sentencing hearing the defen-
dant’s lawyer argued that the defendant “had already
expressed reservations and doubts in the weeks leading
6                                        Nos. 08-2505, 08-3508

up” to the planned attack, which the government pre-
vented from occurring by supplying him through its paid
informant with disarmed grenades, but “the informant
was basically challenging him [the defendant], no, you
have to do this. He was exploiting their relationship to
bring him along to the point where he was arrested.” That
is an entrapment defense. Having waived it by pleading
guilty, United States v. Nash, 29 F.3d 1195, 1201 (7th Cir.
1994); United States v. Cottage, 307 F.3d 494, 499 (6th Cir.
2002), the defendant could not require the judge to con-
sider it anew in sentencing. See United States v. Dickey,
924 F.2d 836, 839 (9th Cir. 1991); United States v. Streeter,
907 F.2d 781, 786-87 (8th Cir. 1990). Otherwise the sen-
tencing hearing would be the trial that the defendant
had waived by pleading guilty.
  Granted, this principle would not hold in a case in which
“sentencing entrapment” was alleged—that is, a case in
which the government was accused of having induced
the defendant to engage in acts (for example, selling a
larger quantity of drugs than he had intended to) that
would earn him a heavier sentence. E.g., United States v.
Turner, 2009 WL 1675745, at *3 (7th Cir. June 17, 2009);
United States v. Okey, 47 F.3d 238, 240 n. 3 (7th Cir. 1995);
United States v. Connell, 960 F.3d 191, 197 n. 9 (1st Cir. 1992).
Sentencing entrapment if proved is a plausible ground
for leniency in sentencing and the judge would therefore
have to consider a nonfrivolous claim of such entrap-
ment. But this is not such a case.
  The judge could if he wanted have given Shareef a lighter
sentence because he thought him impressionable and
weak-willed and that these were substantial mitigating
Nos. 08-2505, 08-3508                                    7

factors. But he was not required to do so and thus to
traverse ground covered in the guilty-plea hearing, in
which the defendant admitted that he had been predis-
posed to commit the crime with which he was charged.
  We have to return briefly to Aguilar-Huerta’s case to
consider a properly individuated objection that he
makes to the sentence: that the judge did not consider
an argument unrelated to the “institutional” challenges
to the guidelines. He returned from Mexico to the
United States after being deported to be with his family,
which was in the United States at the time, but now
they’re in Mexico and therefore, he argues, the probability
that if deported he would again return is slight and so his
prison sentence (though below the guidelines range) was
too severe. The judge did not address the argument
explicitly, but did not need to. She said she’d considered
the mitigating factors urged by the defendant but had
concluded that his involvement in gang violence was a
compelling reason for a stiff sentence for reentering the
United States illegally, just as the 16-level guideline
increase implies. The defendant’s family-reunion argument
was barely worth discussing. He could have returned to
Mexico when they moved back there. And remember
that the basis for his sentence is that he returned to the
United States without the Attorney General’s permission;
his failure to seek that permission greatly weakens the
argument for leniency.
 Both judgments are
                                                A FFIRMED.

                           8-3-09
