Presumption Case Analysis

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The most noteworthy aspect of this opinion is the court’s failure to even address a previous decision by a different panel of the Seventh Circuit, U.S. v. Demaree, No. 05-4213, 2006WL2328665 (7th Cir., Aug. 11, 2006).

In Demaree, the court held that the presumption that a guideline sentence is reasonable only applies on appellate review, but that there is no such presumption at sentencing.

Exactly one week later, the court issued its original decision in the case at bar, holding directly to the contrary, without mentioning Demaree.

Then, on Aug. 28, the court withdrew that decision. At the time, it seemed that the court had not been aware of Demaree when it issued its first opinion, and that the opinion was withdrawn to avoid the intracircuit split of authority that it had created.

Instead, the court reached the exact same conclusion, and still failed to address Demaree, although the court is surely aware of it by now.

The only difference between the two decisions is that the panel is now more adamant than in its previous opinion, stating, “Davis advances the ridiculous notion that the district judge, by applying the rebuttable presumption in Mykytiuk, considered the Guidelines to be mandatory.”

That “ridiculous notion,” however, that a rebuttable presumption is incompatible with advisory-only guidelines, is the law under Demaree.

The actual issue in Demaree was whether the ex post facto clause still prevents sentencing courts from using versions of the sentencing guidelines that were adopted after the defendant committed his crime, where the later version calls for a longer sentence.

The defendant (and the government) argued that, because there is a presumption that a guideline sentence is reasonable, the ex post facto clause still applies. The court, however, held that there is no such presumption, and therefore, the ex post facto clause does not apply.

The court wrote, “The judge is not required — or even permitted — to ‘presume’ that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why its not correct.”

Despite Demaree, the court in the case at bar again held to the contrary, and again did not reference Demaree (unless one considers adding a footnote calling the reasoning in Demaree “ridiculous” to be a thinly-veiled reference).

It seemed, when the court withdrew its original decision in the case at bar, that the intracircuit split of authority would be resolved. Instead, the split has only widened.

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The situation is further complicated because lower courts have already begun to follow Demaree. On Aug. 30, U.S. District Court Judge Lynn Adelman cited Demaree for support in imposing a below-guideline sentence, in U.S. v. Cull, No. 05-CR-329.

Adelman wrote, “while on appeal a sentence within the guideline range is, in this circuit, considered presumptively reasonable, the same is not true at sentencing. …

Therefore, while I continue to give the guidelines serious consideration in all cases — and to provide written reasons for any non-guideline sentence — I do not presume the guideline sentence to be the correct one… (cites omitted)(quote omitted).”

At the time Adelman wrote that sentencing memorandum, Demaree was valid authority and there was no opinion in the case at bar (the original opinion had been withdrawn two days earlier).

However, now that the split of authority has been re-established, lower courts are in a bind as to which authority to follow.

– David Ziemer

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David Ziemer can be reached by email.