Donelli is another case of which defense counsel needs to be aware. In U.S. v. Cunningham, 429 F.3d 673 (7th Cir. 2005), the Seventh Circuit announced that sentencing judges must “address a defendant’s principal arguments in mitigation when those arguments have recognized legal merit.” Donelli instructs what a defense attorney must do at the time of sentencing to make a district court aware of a principal mitigation argument, such that the requirement of Cunningham consideration attaches.
Donelli’s PSR noted that he suffered from bi-polar disorder. Defense counsel did not file a sentencing memorandum, and at the sentencing hearing, asked the court only in general terms to factor in Donelli’s mental health issues when reaching an appropriate sentence. The district court noted the defendant’s mental health issues, but did not discuss her bipolar disorder at length, and concluded by asking if defense counsel required “any further elaboration” for the basis of the sentence. Defense counsel said “no.”
On appeal, Donelli argued that under Cunningham her bi-polar disorder merited greater discussion and consideration by the sentencing court. The Seventh Circuit disagreed. First, the Court found that announcing a characteristic of a defendant does not equate to making a “principal argument” in mitigation. Rather, counsel must develop a personal characteristic into a factor meriting mitigation before the district court must address it.
Second, the Seventh Circuit found that counsel waived any Cunningham issue when counsel did not require a more robust explanation from the district court after the court inquired if he needed to say more. The Seventh Circuit specifically found that a general objection to the sentence itself was not sufficient to preserve a Cunningham objection.
Perhaps the “silver platter doctrine” can take new shape as a mnemonic device for defense counsel arguing mitigation at sentencing. If there is something about your client or your case that constitutes mitigation, serve it to the court on a silver platter; not just the mitigating fact, but how that fact requires a reduced sentence under 18 U.S.C. § 3553(a). And do not hold the platter out silently like a well-trained butler – set it down on the bench and make the judge dispose of it himself.