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September 8, 2006

More on the latest ugly reasonableness work by the Seventh Circuit

In this post I noted an ugly feature of the Seventh Circuit's reasonableness opinion yesterday in Hankton.  A helpful reader followed up by spotlighting that Hankton "appears to conflict directly with Demaree," a Seventh Circuit opinion by authored by Judge Posner last month.  Here is the reader's astute insight:

At page 4 of Hankton, the Court body-slams the defendant's argument that the presumption of reasonableness applies only on appeal, not at the sentencing court level, concluding essentially that district judges should presume that the guidelines are reasonable, unless the defendant "provides cogent reasons for a non-Guidelines sentence." 

But in Demaree, Judge Posner said the opposite:  "The judge is not required―or indeed permitted―to 'presume' that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it's not correct.  All he has to do is consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a)." United States v. Demaree, 2006 WL 2328665, *3 (7th Cir. Aug. 11, 2006) (Posner, J.) (internal citations omitted). 

I discussed the Seventh Circuit's Demaree ruling here and here.  It will be interesting to see if the Seventh Circuit will try to get its reasonableness review house in order.

September 8, 2006 at 08:17 AM | Permalink

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Comments

The Seventh Circuit seems hopelessly lost. Even as they try to fight a rearguard action on behalf of the old sentencing regime, they are the gang that can't shoot straight.

Posted by: Seventh | Sep 8, 2006 8:55:47 AM

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