Reasonableness Case Analysis

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The decision does not change the law regarding appellate review of within-guideline sentences in the Seventh Circuit.

In U.S. v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), the court adopted a rebuttable presumption that within-guideline sentences are reasonable.

Nor does the decision affect the current law regarding sentences that are not within the guideline range.

In U.S. v. Howard, 454 F.3d 700, 703 (7th Cir. 2006), the court rejected a presumption of unreasonbleness for such sentences.

Instead, the court held that the strength of the justification to sustain an outside-guidelines sentence varies in proportion to the degree of the variance. U.S. v Dean, 414 F.3d 725, 729 (7th Cir. 2005).

The Supreme Court expressly deferred consideration of that issue until next term when it will consider U.S. v. Gall, No. 06-7949.

However, the decision does effectively overturn two Seventh Circuit cases. The first is U.S. v. Hankton, 463 F.3d 626 (7th Cir. 2006).

In Hankton, the court wrote, “Davis attempts to bolster his argument, arguing that Mykytiuk should not be considered binding on a sentencing court, stating that, in Mykytiuk ‘this court only decided that a Guidelines sentence is presumed to meet the appellate standard for review for reasonableness.’ However, the presumption that a correctly calculated Guidelines sentence is reasonable not only applies to the appellate standard of reasonableness review, but also serves as a benchmark for trial judges in evaluating whether or not a Guidelines sentence is appropriate. It is only when the defendant provides cogent reasons for a non-Guidelines sentence under 18 U.S.C. § 3553(a) that a sentencing judge need consider such a sentence. See U.S. v. Dean, 414 F.3d 725, 729-30 (7th Cir.2005).” Hankton, 463 F.3d at 629.

The reasoning in the decision by the U.S. Supreme Court, limiting its holding to appellate review, is contrary to Hankton.

The court emphasized that the presumption arises because there has been a “double determination” that the sentence is reasonable — by the Sentencing Commission and the trial court.

At the trial level, however, there has been only one determination that a guideline sentence is reasonable.

The court explained, “the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic sec. 3553(a) objectives, the one, at retail, the other at wholesale.”

However, if district courts employ a presumption of reasonableness, this is thwarted; there will have been only a “wholesale” determination that the sentence is reasonable, but no “retail” determination.

A presumption at the trial court level would also be contrary to explicit language in the court’s decision. The court wrote, “We repeat that the presumption before us is an appellate court presumption. … [T]he presumption applies only on appellate review (emphasis in original).”

Later, it added, “A nonbinding appellate presumption that a Guideline sentence is reasonable does not require the sentencing judge to impose that sentence. … [O]ur Sixth Amendment cases do not forbid appellate court use of the presumption (emphasis in original).”

Accordingly, Hankton is no longer valid law.

U.S. v. Wurzinger, 467 F.3d 469 (7th Cir. 2006), is also effectively overruled.

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The court wrote, “Wurzinger now appeals, arguing both that the district court improperly presumed that an appropriate sentence for him falls within the guidelines range and that his sentence is unreasonably long. The first claim stumbles coming out of the gate. Just prior to oral argument, this court decided that a presumption in favor of a guidelines sentence is appropriate and that a court need only consider a non-guidelines sentence when a defendant provides ‘cogent reasons’ for one. United States v. Hankton, 463 F.3d 626, 629 (7th Cir.2006).

In light of the Supreme Court’s holding, Wurzinger and the defendant in Hankton would appear to be entitled to new sentencing hearings.

In contrast, the Seventh Circuit decision that correctly states the law is U.S. v. Demaree, 459 F.3d 791, 794-795: “The [sentencing] judge is not required — or indeed permitted, United States v. Brown, 450 F.3d 76, 81-82 (1st Cir.2006) — to ‘presume’ that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it’s not correct.”

Thus, while the decision is a victory for the government, many defendants will be able to benefit from it. It appears that any defendant who was sentenced by a district court judge employing a presumption of reasonableness has had his Sixth Amendment right to a jury violated, and may be entitled to a new sentencing.

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David Ziemer can be reached by email.