Guideline
sentence vacated
Appearance
of presumption nulls sentence
By
David Ziemer
david.ziemer@wislawjournal.com
Sept.
17, 2007
| 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.
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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here for Case Analysis.
David
Ziemer can be reached by email.
