The decision provides one of the few arguments available for defendants seeking to challenge within-guideline sentences.
Given the presumption of reasonableness that attaches on appellate review, most appeals of guideline sentences will fail, and many will be considered frivolous by the Seventh Circuit, as in the recent case of U.S. v. Gammicchia, F.3d , 2007 WL 2265134 (7th Cir., Aug. 8, 2007).
Since Rita definitively limited the presumption of reasonableness to appellate review, and found it inappropriate at the district court level, a defendant obviously can challenge a sentence if the district court explicitly states that it is presuming that a within-guideline sentence is reasonable.
In U.S. v. Schmitt, F.3d 00, 2007WL-2241652, *4 (7th Cir., Aug. 7, 2007), for example, the court vacated a sentence because the district court stated, sentences within the guidelines are presumptively correct.
This case, however, provides guidance as to when a sentence can be challenged, even though the court never uses the term presumption of reasonableness, but it appears, reading between the lines, that it actually did so.
Here, the district court stated at the plea hearing, I need some kind of good reason to do it. Otherwise I have to give you the guideline sentence.
Later, at sentencing, the district court stated that the bottom of the guideline range was the lowest sentence possible
In addition, the court stated it was bound by Congress judgment.
In any future case where the district court makes similar comments, a defendant can plausibly argue that the court employed a presumption of reasonableness, even though it did not do so expressly, as was the case in Schmitt.
A recent unpublished case, U.S. v. Ledcke, 2007WL2085758, *4 (7th Cir., July 23, 2007), also offers some guidance. Like the defendant in the case at bar, Ledcke argued that the district court effectively employed a presumption of reasonableness.
The Seventh Circuit disagreed, however, finding nothing from which it could infer the use of an improper presumption. The court noted that that the district court did not say it needed an exceptional reason to impose a below-guideline sentence.
Were a district court in other cases to speak of a need for an exceptional reason, the sentence would be subject to attack.
The case is also significant for putting district courts on notice that they need to be careful. Expressions such as the district court used in this case can carelessly be uttered in the course of a lengthy sentencing, even when the district court does not intend to use a presumption of reasonableness.
Courts must be careful to avoid such expressions, lest their intentions be misinterpreted on appeal.
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David Ziemer can be reached by email.