Seventh Circuit split widens

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The Seventh Circuit on Sept. 7 issued a revision of a recently withdrawn decision, but its holding was the same — the rebuttable presumption that a guideline sentence is reasonable applies in the district court as well as on appeal.

As in the earlier withdrawn opinion, the court did not address another Seventh Circuit case that holds to the contrary, U.S. v. Demaree, No. 05-4213, 2006 WL2328665 (7th Cir., Aug. 11, 2006).

In 2002, Clarence Hankton and Gregory Davis pleaded guilty to possessing cocaine with intent to distribute. Hankton received 300 months imprisonment, and Davis received 210.

Both appealed, but the Seventh Circuit held in a previous decision that the district court properly calculated their re-spective guideline ranges, U.S. v. Hankton, 432 F.3d 799 (7th Cir. 2005). However, the court issued a limited remand, pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005).

On remand, the district judge stated that he would have given the same sentences, even if he had known the guidelines were only advisory.

The Seventh Circuit invited the parties to address the reasonableness of the sentence, but only Davis and the government responded.

On Aug. 18, 2006, the Seventh Circuit held that Davis’ sentence was reasonable. However, on Aug. 26, the court withdrew that opinion.

On Sept. 7, the court issued a new opinion that, like the original, holds the sentence reasonable.

At issue in the case is the breadth of the statement in U.S. v. Mykytuik, 415 F.3d 606, 608 (7th Cir. 2005), that “any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.”

The district court cited Mykytuik and the presumption for authority in imposing Davis’ sentence.

Davis contended that Mykytiuk only applies when an appellate court is reviewing a sentence for reasonableness, but that there is no such presumption during the sentence itself, and the district court therefore misunderstood its authority.

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Rejecting the argument, the court held, “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.”

After summarily rejecting arguments by Davis that he should have received a lower sentence to reduce the disparity between sentences for crack and powder cocaine, the court again addressed the rebuttable presumption issue.

In a footnote, the court wrote, “Davis advances the ridiculous notion that the district judge, by applying the rebuttable presumption in Mykytiuk, considered the Guidelines to be mandatory. Suffice it to say, the district court did no such thing.”

The court concluded, “while we see no reason to expound on our holding in Mykytiuk, we dismiss out of hand Davis’s assertion in his brief that Mykytiuk ‘sends the message that a sentence within the Guidelines will never be reversed … .’ Our holding in Mykytiuk implies no such thing. A ‘rebuttable presumption’ is just that, ‘rebuttable.’”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.