Seventh Circuit rules a 'rebuttable presumption' is just that, 'rebuttable.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit on Sept. 7 issued a revision of a recently withdrawn decision, but its holding was the same - the rebuttable presumption that a guideline sentence is reasonable applies in the district court as well as on appeal.

As in the earlier withdrawn opinion, the court did not address another Seventh Circuit case that holds to the contrary, U.S. v. Demaree, No. 05-4213, 2006 WL2328665 (7th Cir., Aug. 11,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...