Seventh Circuit
split widens
By
David Ziemer
Wisconsin Law Journal
Sept.
13, 2006
|
What
the court held
Case:
U.S. v. Hankton, Nos. 03-2345 & 03-2915.
Issue:
Does the rebuttable presumption that a guideline sentence
is reasonable apply at sentencing?
Holding:
Yes. The presumption is not limited to appellate review.
|
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Seventh Circuit on Sept. 7 issued a revision of a recently withdrawn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in the earlier withdrawn opinion, the court did not address another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.
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.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
