United States of America v. Danny D. Fortner

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4104
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
D ANNY D. F ORTNER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 20017—Michael P. McCuskey, Chief Judge.
____________
D ECIDED J UNE 15, 2006;
O PINION ISSUED J ULY 31, 2006
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Before EASTERBROOK , M ANION , and SYKES, Circuit Judges.
S YKES , 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

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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 provid-
ing 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 strat-
egy—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

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No. 05-4104 3
motions panel and three on the merits panel.) The govern-
ment could have made these same arguments in a brief and
moved to waive oral argument if it felt that argument would
be unhelpful. See F ED . R. A PP . 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 short-
cut, 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 incomprehen-
sible 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) situa-
tions, 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

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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.
M OTIONS D ENIED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-31-06

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