In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2796

United States of America,

Plaintiff-Appellant,

v.

Michael J. Tomasino,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 965--Robert W. Gettleman, Judge.


On Petition for Rehearing and Rehearing En Banc.


Decided September 26, 2000




  Before Posner, Easterbrook, and Ripple, Circuit
Judges.

  Per Curiam. Our opinion in this case, 206 F.3d
739 (7th Cir. 2000), concludes that because the
1991 amendment to U.S.S.G. sec.2F1.1(b) may have
reflected confusion by the Sentencing Commission
about the extent of its discretion, Tomasino’s
sentence may not be enhanced under that
guideline. The penultimate paragraph of our
opinion invited the Commission to clarify its
understanding without the formality of amending
the guidelines or notes. We remanded the case for
resentencing "after giving the Commission a
reasonable opportunity to clarify its intentions
in promulgating U.S.S.G. sec.2F1.1(b)(7)(B)." 206
F.3d at 743.

  Contrary to our expectations, the Commission did
not welcome this opportunity. A letter sent to
the Solicitor General on April 26, 2000, and
attached to the United States’ petition for
rehearing, conveys the Commission’s belief that
our opinion "could cause the Commission to be
burdened by a stream of judicial requests for
clarification. Such a burden would impact
negatively on the ability of the Commission to
respond to legislative directives, resolve
circuit conflicts, and promulgate other
amendments pursuant to its mandate from
Congress." The United States’ petition for
rehearing observes that the Commission prefers to
limit itself to a legislative role:

The Commission is not charged with sentencing
individual defendants. Nor should it be in the
business of stating its views regarding the
meaning of the Guideline provisions in any form
other than through the promulgation process set
forth by statute. Much like a legislature, once
the Commission has promulgated its Guidelines and
amendments, courts must interpret them as well as
they can.

Given the jointly held view of the Sentencing
Commission and the Department of Justice that
guidelines and notes must speak for themselves,
we withdraw the final two paragraphs of our
opinion, which solicited the Commission’s views.
This was an invitation, not a command, and the
invitation has been declined not only for this
case but also for future cases.

  For the reasons stated elsewhere in our
original opinion, however, a majority of the
panel remains of the opinion that
sec.2F1.1(b)(7)(B) may have been based on a
misunderstanding and therefore does not support
enhanced punishment for Tomasino. Accordingly, we
grant the petition for rehearing to the extent it
objects to the remand, and we now affirm
Tomasino’s sentence. A majority of the panel has
voted to deny the petition for rehearing to the
extent it seeks any other modification of the
judgment. No judge in active service has called
for a vote on the petition for rehearing en banc,
which is denied.




  Easterbrook, Circuit Judge, dissenting from the
denial of rehearing. I am gratified to learn that
the Sentencing Commission is content with the
powers Congress gave it and does not seek to
evade statutory limits on its rule-creation and
rule-interpretation abilities. See 206 F.3d at
744-45 (dissenting from the panel’s original
handling of this subject). Withdrawing the
invitation is a sound step. Unfortunately,
however, the court follows the Commission only
part way. The Commission’s letter to the
Solicitor General also has this to say:

It is the Commission’s view that action by the
Commission should be sustained when it has acted
within its statutory authority. The Commission’s
ability to carry out its responsibilities under
the Sentencing Reform Act would be hampered if
clearly worded guideline provisions were not to
be given effect pending some further statement of
intent from the Commission. . . . [The court’s]
approach could also undermine uniform application
of the guidelines by encouraging individual
judges to construe guideline provisions narrowly
and to focus on legislative history rather than
on the guidelines themselves. In sum, this
precedent, if undisturbed, would be detrimental
to the operation of the Commission and to the
uniform application of the guidelines.

Indeed so. By departing from what the Commission
promulgated because they are unsure what the
Commissioners thought, my colleagues promote
uncertainty and do a serious disservice to the
statutory goal of predictability in sentencing.
We should fix this part of the decision, too, and
remand with instructions to sentence Tomasino
under the text of the existing guidelines.
