In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1523

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES D. BULLION,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05 CR 30136—William D. Stiehl, Judge.

____________

ARGUED SEPTEMBER 22, 2006—DECIDED OCTOBER 19, 2006

____________

Before POSNER, ROVNER, and EVANS, Circuit Judges.

POSNER, Circuit Judge. The defendant pleaded guilty to

being a felon in possession of a firearm. The guidelines

range for his offense was 188 to 235 months, but the

judge sentenced him to 264 months, and the defendant

challenges the sentence as unreasonable. Because it exceeded the guidelines range, there is no presumption that it

is reasonable. United States v. Robinson, 435 F.3d 699, 701 (7th

Cir. 2006). But the standard of reasonableness, introduced

by the Booker decision, confers broad sentencing discretion.

The judge must consider the guidelines but is in no sense

bound by them. He is bound only by the statutory sentenc-
2 No. 06-1523

ing factors, 18 U.S.C. § 3553(a), which are both numerous

and vague, thus giving the judge a great deal of running

room. United States v. DeMaree, 459 F.3d 791, 795 (7th Cir.

2006); United States v. Walker, 447 F.3d 999, 1007 (7th Cir.

2006). There was no basis for the defendant’s challenging

the exercise of discretion by the sentencing judge in this

case—and, we add, in cases like it. Not because there were

no mitigating factors, but because the balance that the judge

struck between them and the aggravating factors was so far

inside the outer bounds of his sentencing discretion as to

make the claim of unreasonableness frivolous and the

appeal a compelling candidate for an Anders brief.

When we put this to the defendant’s lawyer at argument,

she said that the defendant wanted her to appeal. No doubt;

had he not wanted her to appeal, it would have been serious

misconduct for her to appeal. But a defendant has no right

to file a frivolous appeal, and his lawyer has a duty to file an

Anders brief rather than to argue frivolous grounds for

reversal. McCoy v. Court of Appeals of Wisconsin, District 1,

486 U.S. 429, 438 (1988); United States v. Cooper, 170 F.3d 691,

692 (7th Cir. 1999); United States v. Osuna, 141 F.3d 1412,

1415 (10th Cir. 1998); United States v. Humphrey, 7 F.3d 1186,

1191 (5th Cir. 1993).

The defendant’s frightening criminal history begins

with aggravated kidnapping and rape of a minor, the rape

of another minor, and another aggravated kidnapping and

rape, continues with a conviction of attempted armed

robbery and two convictions each of armed robbery and

auto theft, and is punctuated by numerous arrests. His

criminal career culminated in the offense for which he

was convicted in the present case. In the course of an assault

on his wife, he fired a sawed-off shotgun, apparently in her

general direction, though without hitting her.
No. 06-1523 3

The district judge “looked carefully through all the

material that’s been submitted to me to find some argument

for this court to show some leniency in your sentencing. I

find none. I think the most important factor that leaps out

for consideration is a need to protect the public from you.

Because each time you have been released from confinement, you have quickly returned to a life of crime.” He

mentioned as another consideration in the severe sentence

that he gave—a consideration related to both the protective

and the retributive goals of punishment—“the list and the

nature of these very serious, violent, heinous crimes.”

The defendant offers two arguments for why the sentence

is unreasonably long. The first is that because of his age (58

at sentencing) and health (he is an insulin-dependent

diabetic), the sentence amounts to life in prison. He says

that if he were healthy, his life expectancy would be 78; that

his diabetes takes 13 years off, reducing his life expectancy

to 65; and that a sentence of 22 years will therefore exceed

his life span.

The sentencing guidelines state that “age may be a reason

to depart downward in a case in which the defendant is

elderly and infirm and where a form of punishment such as

home confinement might be equally efficient as and less

costly than incarceration.” U.S.S.G. § 5H1.1. In other words,

if the defendant is elderly and infirm, he may be harmless,

and this bears on the sentencing goal of preventing him (as

distinct from deterring him and others) from committing

crimes by incarcerating him. In still other words, the older,

weaker, etc., the defendant is, the less likely he is to

recidivate, and this argues for a shorter sentence. Bullion

obviously is not yet elderly, infirm, or for any other reason

harmless, but no doubt he will become harmless sooner

than would an otherwise identical 20-year-old who received

the same sentence.
4 No. 06-1523

Bullion’s argument is different—not that a point will come

at which it no longer serves an incapacitative purpose to

keep him in prison, but that age per se is a mitigating factor,

as if it were penal policy to encourage the elderly to commit

crimes. That argument is unlikely to persuade any judge. In

any event it fails on its own terms. Life expectancy is not

age at death, but merely median (in some versions average)

age at death. To have a life expectancy of 78 (the life

expectancy from which Bullion begins his analysis) is to

have a 50 percent chance of dying before one’s 78th birthday

and a 50 percent chance of dying after. Thus the fact that

Bullion’s life expectancy is 65 doesn’t mean that he won’t

live considerably longer. Furthermore, his life expectancy is

not 65. The starting point in his computation—78—is the life

expectancy of the average American at birth (actually it’s

77). Remaining life expectancy increases with every year

one lives, and in fact the life expectancy of the average 58-

year-old American is not 77 but 84—indeed, doubtless

higher, given continued advances in medicine.

As for the reduction due to insulin-dependent diabetes,

the critical question, unmentioned by the defendant, is

the age of onset—the earlier that is, the shorter the life

expectancy. If the defendant became diabetic recently, and

so in all likelihood is suffering merely from type 2 diabetes and is therefore taking insulin because he does not

control his diet, then the reduction in his life expectancy,

according to the source he cites (mysteriously, a study of the

life expectancy of Canadian diabetics), is 5 to 10 years. If the

average of those numbers, 7.5, is subtracted from 84, the

defendant’s life expectancy is not 65 but 76.5. A 22-year

sentence, if served in full (it need not be—good-time credit

would reduce it to 18.7 years) would take him to age 80 or,

if he behaves himself, to 76.7; but a person with a life

expectancy of 76.5 has a good chance of living to 80. The

defendant himself argued in the district court for a 17.5-year
No. 06-1523 5

sentence on the ground that he could then hope to be

released at 75.5; yet 17.5 plus 65 is 82.5.

The defendant’s second argument is that since the tendency to commit crimes, violent and otherwise, diminishes

with age (which is true, U.S. Sentencing Commission, “Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines” 12, 28 (May

2004); John H. Laub & Robert J. Sampson, “Understanding

Desistance from Crime,” 28 Crime & Just. 1, 5 (2001); Keith

C. Owens, Comment, “California’s ‘Three Strikes’ Debacle,”

25 Sw. U. L. Rev. 129, 155 (1995); Christopher Slobogin,

“Dangerousness and Expertise,” 133 U. Pa. L. Rev. 97, 121

(1984)), a 58 year old need not be given a 22-year sentence

in order to be kept out of circulation until he is safe. That

may well be true of the average 58 year old. But given the

defendant’s unusually violent criminal history and the fact

that even an elderly person has enough strength to pull the

trigger of a shotgun, the district judge could certainly worry

about what the defendant might do in his seventies. The

curious implication of the defendant’s argument is that no

violent criminal should be kept in prison beyond the age of,

say, 70, but that there should be no limit for white-collar

criminals, since their physical capacity to commit their

preferred types of crime does not diminish with age.

But we have gone on at too great a length about the

infirmities in the defendant’s arguments. These are arguments to address to a sentencing judge, not to an appellate

court. No precise weights can be assigned to such factors

in the sentencing balance as the dangerousness of the

criminal and (as mitigating that dangerousness) his age and

ill health. The striking of a balance of uncertainties

can rarely be deemed unreasonable, and certainly not in this

case.

AFFIRMED.
6 No. 06-1523

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-19-06