Presumption
Case Analysis
Sept.
17, 2007
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unpublished case, U.S. v. Ledcke, 2007WL2085758, *4 (7th Cir., July 23, 2007),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.
Click
here for Main Story.
David
Ziemer can be reached by email.
