Presumption
Case Analysis
Sept.
13, 2006
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its first opinion, and that the opinion was withdrawn to avoid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.
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
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