Seventh Circuit sentencing split

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The presumption that a guideline sentence is reasonable applies at the time of sentencing, as well as on appeal, the Seventh Circuit held on Aug. 18.

In so holding, the court created an intracircuit split of authority, as a different panel of the court held to the contrary on Aug. 11, in U.S. v. Demaree, 2006 WL 2328665 (7th Cir., Aug. 11, 2006), a case the panel in the case at bar did not even mention.

In 2002, Clarence Hankton and Gregory Davis each pleaded guilty in federal court to possessing cocaine with the intent to distribute. Hankton was sentenced to 300 months imprisonment, and Davis received 210.

Both appealed, but the Seventh Circuit affirmed their sentences, concluding that the district court properly calculated their guideline ranges. U.S. v. Hankton, 432 F.3d 799 (7th Cir.2005). However, the court also issued a limited remand, pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir.2005).

On remand, the district judge replied that he would have given Hankton and Davis the same sentences notwithstanding the now-advisory nature of the guidelines.

The Seventh Circuit then invited the parties to file arguments concerning the reasonableness of the sentences, but only Davis and the government responded. The Seventh Circuit then held both sentences reasonable, in a decision by Judge John L. Coffey.

Pursuant to U.S. v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005), a sentence within the guidelines is entitled to a rebuttable presumption of reasonableness, and the appellate court’s review is deferential.

An appellant may rebut this presumption of reasonableness by showing that the sentence is unreasonable when measured against the facts set forth in 18 U.S.C. 3553(a), such as the “need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

Davis argued that the district court misunderstood its authority by applying the Mykytiuk presumption of reasonableness at sentencing, citing a statement by the district court that Davis failed to “overcome the rebuttable presumption that his sentence is reasonable.”

Rejecting Davis’ argument that Mykytiuk only applies on appeal, Judge Coffey wrote, “the presumption that a correctly calculated Guidelines sentence is reasonable not only applies to the appellate standard of reasonableness review, but also guides a district judge’s consideration of an appropriate sentence. It is only when the defendant provides cogent reasons under 18 U.S.C. 3553(a) that a sentencing judge need consider a non-Guidelines sentence (citing U.S. v. Dean, 414 F.3d. 725, 729-30 (7th Cir. 2005).”

Turning to whether the sentence was in fact reasonable, the court held it was.

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The court found that the district court thoroughly considered the sec. 3553(a) factors, and, following U.S. v. Miller, 2006 WL 1541426 (7th Cir., 2006), rejected Davis’ argument that the disparity between sentences for crack and powder cocaine is grounds for a below-guideline sentence.

The court rejected Davis’ argument that, because his crimes were the result of addiction to marijuana and alcohol, and that, at times during his life, he was a good father and held legitimate employment, the sentence was unreasonable.

The court reasoned, “evidence of pre-existing drug and alcohol addiction, without more, is insufficient to render a sentence within a properly calculated Guidelines range unreasonable. Were this not the case, every convicted criminal who had used or abused drugs and drink at some time and was not given a reduction under the Guidelines could challenge his sentence as unreasonable on those grounds alone.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.