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Guideline sentence vacated

What the court held

Case: U.S. v. Ross, No. 07-1215.

Issues: Must a defendant be resentenced where the district court seemed to employ a presumption that a within-guideline sentence is reasonable?

Holdings: Yes. Even if the court did not explicitly employ a presumption of reasonableness, the sentence must be vacated where it appears that she did.

The Seventh Circuit on Sept. 11 vacated a sentence where it “appeared” that the district court employed a presumption that a guideline sentence was reasonable, even though the she did not expressly do so.

William Ross III pleaded guilty in Illinois federal court to conspiracy to possess and distribute cocaine and marijuana.

At the plea hearing, the district court explained to Ross that, “I do have the power to give you a [non-guideline] sentence, but I need some kind of good reason to do it. Otherwise I have to give you the guideline sentence.”

At sentencing, the parties agreed that Ross satisfied the “safety valve” provisions of U.S.S.G. 5C1.2(a), and so was eligible for a sentence below the statutory minimum, and that the appropriate guideline range was 78 to 97 months.

Ross asked for a below-guideline sentence based on a number of factors: his disclosures to the government; his short-lived involvement in the drug conspiracy; and his maintaining steady, legitimate employment.

However, the court imposed a sentence at the bottom of, but within, the guideline range — 78 months — stating: “The fact that I may think that the harm that’s done by a sentence like this in terms of Mr. Ross’ family members and his children may be greater than is necessary to deal with the drug problem, that doesn’t matter, because it isn’t my judgment that rules on that. It’s Congress’ judgment. All I can do is accept that we’re dealing with a regime which punishes people very severely for dealing drugs, there were a lot of drugs in this case, and give Mr. Ross the lowest sentence that’s possible in recognition of the fact that he’s tried to work legitimately, to the extent he’s been able to do that, that he’s got a very close family, that he’s got kids, that he’s done right by them, and there all those good factors in this case, and I have taken them into consideration.”

Ross appealed, and the Seventh Circuit vacated the sentence, concluding that the district court may have improperly presumed that a guideline sentence was reasonable.

The court noted that, after the U.S. Supreme Court in U.S. v. Booker, 543 U.S. 220 (2005), held that the guidelines were advisory, rather than mandatory, it issued conflicting opinions on whether there was a presumption at sentencing, whether a guideline sentence was reasonable.

In U.S. v. Wurzinger, 467 F.3d 649, 650-51 (7th Cir. 2006), and U.S. v. Hankton, 463 F.3d 626, 629 (7th Cir. 2006), the court held there was a presumption. But it held that a presumption was impermissible in U.S. v. Gama-Gonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006), and U.S. v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006).

After those opinions were issued, the U.S. Supreme Court decided the issue, holding in Rita v. U.S., 127 S. Ct. 2456, 2465 (2007), that the presumption of reasonableness only applies when reviewing a within-guideline sentence on appeal, but does not apply in the district court.

Turning to the case at bar, the court found the district court’s language ambiguous as to whether it impermissibly employed a presumption of reasonableness.

As a result, the court vacated the sentence and remanded for resentencing.

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The court noted the district court’s statement that it could not sentence him below the guideline range unless he “presented some kind of good reason” for it.

The district court also stated that the 78-month sentence was the “lowest sentence that’s possible.”

Focusing on this statement, the court of appeals concluded, “The district court was wrong to conclude that the ‘lowest sentence possible’ was the bottom of the guidelines range; if it legitimately concluded that Ross’s personal characteristics warranted something lower, it was free to sentence Ross below the guidelines range.”

The court acknowledged that the district court may have not intended to use a presumption that a guideline sentence was reasonable, but its language suggested that it felt so bound.

Accordingly, the court vacated and remanded for resentencing.

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David Ziemer can be reached b
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