In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4104

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANNY D. FORTNER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 04 CR 20017—Michael P. McCuskey, Chief Judge.

____________

DECIDED JUNE 15, 2006;

OPINION ISSUED JULY 31, 2006

____________

Before EASTERBROOK,MANION,andSYKES, Circuit Judges.

SYKES, Circuit Judge. Danny Fortner pleaded guilty

to distributing methamphetamine and was sentenced to 288

months’ imprisonment. He has appealed, challenging both

a three-point sentencing enhancement for his role as an

organizer or leader in the distribution scheme, U.S.S.G.

§ 3B1.1(c), and the reasonableness of his sentence. Five

days before the brief for the United States as appellee was

due, the government filed a motion for summary affirmance

along with a motion to suspend briefing in the appeal. The

government argued that any challenge to the organizer

enhancement was a waste of time because the district judge
2 No. 05-4104

stated at sentencing that even if the advisory guidelines

range had been lower, he would not have imposed a shorter

sentence. Indeed, he said that if the case were to return to

him after an appeal, he would impose a longer

sentence—327 months—and all that prevented him from

doing so the first time around was his own policy of providing advance notice before exceeding the government’s

recommended sentence. The government also contended in

its motion that any challenge to the reasonableness of

Fortner’s sentence was frivolous. As a motions panel, we

denied both the motion for summary affirmance and the

motion to suspend briefing by order on June 15, 2006,

noting that an opinion would follow.

We now explain why the government’s litigation strategy—filing a motion for summary affirmance days before its

merits brief was due—is problematic. The practice is widely

used; anecdotally, this is the second such motion this

motions panel has addressed (and denied) in a single week.

“The strategy is this: instead of filing a brief on the due

date, the appellee files something else, such as a motion to

dismiss. The goal and often the effect is to obtain a self-help

extension of time even though the court would be unlikely

to grant an extension if one were requested openly.” United

States v. Lloyd, 398 F.3d 978, 980 (7th Cir. 2005); see also

Ramos v. Ashcroft, 371 F.3d 948, 949-50 (7th Cir. 2004). As

we held in Lloyd and Ramos, a last-minute motion, if

necessary, should be filed along with a timely brief, not in

place of it.

A motion for summary affirmance is somewhat different

from the motions at issue in Lloyd (motion to dismiss) and

Ramos (motion to transfer). The government’s submission

in this case is fifteen pages long, and but for the formal

requirements of Federal Rule of Appellate Procedure 28,

it is essentially a brief on the merits. But by filing it the

government has wasted the resources of this court. (Six

judges will ultimately consider this appeal: three on the
No. 05-4104 3

motions panel and three on the merits panel.) The government could have made these same arguments in a brief and

moved to waive oral argument if it felt that argument would

be unhelpful. See FED. R. APP. P. 34. But then, such motions

are not always granted, particularly in criminal appeals

where, as here, substantial punishment has been imposed.

See United States v. Adeniji, 179 F.3d 1028, 1029-30 (7th

Cir. 1999) (Posner, J., in chambers). Rather than risking a

motion to waive argument and undertaking the extra work

of submitting a timely brief, the government took a shortcut, filing this motion to affirm summarily and seeking to

delay briefing in the event the motion was denied and it

needed to file a full brief. So the case presents the same

element of self-help as in Lloyd and Ramos.

Motions for summary affirmance generally should be

confined to certain limited circumstances. Summary

disposition is appropriate in an emergency, when time is of

the essence and the court cannot wait for full briefing and

must decide a matter on motion papers alone. See Mather

v. Vill. of Mundelein, 869 F.2d 356, 357-58 (7th Cir. 1989)

(per curiam). Summary affirmance may also be in order

when the arguments in the opening brief are incomprehensible or completely insubstantial. See, e.g., Lee v. Clinton,

209 F.3d 1025, 1025-27 (7th Cir. 2000); Williams v. Chrans,

42 F.3d 1137, 1139 (7th Cir. 1994); United States v.

Monsalve, 388 F.3d 71, 73 (2d Cir. 2004) (per curiam).

Finally, summary affirmance may be appropriate when a

recent appellate decision directly resolves the appeal. See,

e.g., United States v. Young, 115 F.3d 834, 836 (11th Cir.

1997) (per curiam). When a motion for summary affirmance

is appropriate, it should be filed earlier rather than

later—not right before the merits brief is due.

Short of the foregoing (or substantially similar) situations, the government and other appellees should follow the

usual process: file a merits brief and argue the case in the

ordinary course. This appeal may be straightforward, but
4 No. 05-4104

we are not convinced that it is so insubstantial that full

briefing would not assist the merits panel that decides it.

MOTIONS DENIED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-31-06