                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0278p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                             X
                                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 06-1896
               v.
                                                              ,
                                                               >
 BLAKE WILMS,                                                 -
                                     Defendant-Appellant. -
                                                             N
                              Appeal from the United States District Court
                             for the Eastern District of Michigan at Detroit.
                           No. 05-80463—Nancy G. Edmunds, District Judge.
                                             Argued: July 18, 2007
                                      Decided and Filed: July 23, 2007
             Before: MOORE and GILMAN, Circuit Judges; FORESTER, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: Mark J. Kriger, LaRENE & KRIGER, Detroit, Michigan, for Appellant. Frances Lee
Carlson, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Mark J. Kriger, N.C. Deday LaRene, LaRENE & KRIGER, Detroit, Michigan, for
Appellant. Frances Lee Carlson, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Blake Wilms (“Wilms”)
appeals his sentence of sixty-three months in prison following his plea of guilty to four counts of
bank robbery and one count of attempted bank robbery. Wilms argues that the district court
improperly applied a presumption of reasonableness to the applicable Guidelines range, thereby
failing to consider properly the sentencing factors set forth in 18 U.S.C. § 3553(a). Because the
record indicates that the district court applied a rebuttable presumption that Wilms should be
sentenced within the applicable Guidelines range, we VACATE Wilms’s sentence and REMAND
the case for resentencing.


         *
          The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                          1
No. 06-1896            United States v. Wilms                                                     Page 2


                                         I. BACKGROUND
        On October 22, 2004, Blake Wilms entered the Clarkston Bank in Clarkston, Michigan,
walkie-talkie in hand, and falsely informed a teller that he had planted a bomb in the attached
grocery store and could detonate it remotely. Wilms demanded that the teller fill a grocery bag with
all $100, $50, and $20 bills available. The teller complied, and Wilms left the bank with $35,650
in cash. Wilms repeated essentially the same conduct twice more, taking $71,420 from a Fifth Third
Bank in Rochester Hills, Michigan, on November 19, 2004, and $15,000 from a Fifth Third Bank
in White Lake Township, Michigan, on December 10, 2004.
         Wilms entered two more banks on December 14, 2004. First, Wilms took $4,650 from a
Huntington Bank in Rochester, Michigan, repeating the same general conduct as before, but using
a note instead of verbally communicating his threats. Later that day, Wilms used the same note to
demand money from a Comerica Bank in Birmingham, Michigan. A bank employee activated a
silent alarm, however, and the Birmingham police responded. Wilms was arrested at the Comerica
Bank and taken into custody.
        That same day, Wilms confessed to police to robbing the Clarkston Bank, the two Fifth Third
Banks, and the Huntington Bank. He was released on bond, and on September 8, 2005, he pleaded
guilty, without the benefit of a plea agreement, to an information charging him with four counts of
bank robbery and one count of attempted bank robbery, all in violation of 18 U.S.C. § 2113(a). The
case proceeded to sentencing.
         In his sentencing memorandum submitted to the district court and during a sentencing
hearing spread out over two days, Wilms emphasized that he had accepted responsibility for his
conduct, that he suffered from a gambling addiction, and that he had made great rehabilitative efforts
in the time between the bank robberies and sentencing. Wilms introduced as evidence in support
a report detailing his treatment for his gambling addiction, letters from Wilms’s family, friends, and
colleagues in Gamblers Anonymous, and psychological evaluations and testimony. Wilms argued
that a sentence of twelve to eighteen months in prison followed by a lengthy term of supervised
release, as recommended by the evaluating psychologists, would be sufficient “under the particular
and unusual circumstances of the case at bar - a genuinely remorseful offender, whose criminal
conduct arose directly out of an addiction disorder which he is struggling manfully (and, by all
reports, successfully) to overcome, and whose prospects for recovery would, if anything, be
hampered by an unduly lengthy prison sentence - . . . and would not unduly depreciate the admitted
seriousness of Mr. Wilms’s offenses.” Joint Appendix (“J.A.”) at 35-36 (Sentencing Mem. at 11-
12). The government argued that “[t]here simply is nothing unusual about this case” and urged the
district court to sentence Wilms within the applicable Guidelines range of seventy-eight to ninety-
seven months in prison. J.A. at 82 (Resp. to Sentencing Mem. at 8). Notably, the government
repeatedly emphasized to the district court that the Guidelines range carried a rebuttable
presumption of reasonableness and argued that Wilms’s “addiction and rehabilitation efforts simply
do not rebut the presumption.” Id.; see also J.A. at 184 (6/13/06 Sentencing Hr’g at 8).
         In its sentencing decision, the district court first noted that “the guidelines are presumptively
reasonable under the current Sixth Circuit law.” J.A. at 190 (6/13/06 Sentencing Hr’g at 14). The
district court recited the relevant sentencing factors under 18 U.S.C. § 3553 and detailed the
calculation of the applicable Guidelines range of seventy-eight to ninety-seven months in prison.
The district court then reasoned:
        But it doesn’t seem to me that given the state of the law and the need to avoid
        unwarranted disparities that there is really much room, if any, to overcome the
        presumption of reasonableness with respect to the sentencing guidelines in this case,
        and I guess the only room that I see is that it was happenstance that there was more
No. 06-1896           United States v. Wilms                                                      Page 3


       money taken than is usually taken in a bank robbery, and you might on that basis
       drop the total offense level from 31 to 29 which would then bring it down to, if we
       take the three levels off for acceptance of responsibility, 63 to 78 months.
               And that is really all that I am prepared to do with respect to this matter, and
       the only reason I’m will[ing] to do that is in recognition of the strides that Mr. Wilms
       has made toward his rehabilitation, which are very significant, and what seems to be
       more the extent of the amount of money taken.
J.A. at 192 (6/13/06 Sentencing Hr’g at 16). The district court sentenced Wilms to sixty-three
months in prison, a three-year term of supervised release, and a $500 special assessment, and
ordered restitution of the full amount of money stolen. Wilms timely appealed.
                                           II. ANALYSIS
       Wilms argues that his sentence should be vacated because the district court’s determination
was procedurally unreasonable.
A. Standard of Review
        On appeal, we must determine whether a district court’s sentencing determination was
reasonable. Rita v. United States, --- U.S. ---, 127 S. Ct. 2456, 2459 (2007); United States v. Webb,
403 F.3d 373, 383 (6th Cir. 2005), cert. denied, --- U.S. ---, 126 S. Ct. 1110 (2006). The Supreme
Court’s recent decision in Rita v. United States reinforces our prior determination that
reasonableness has a procedural component—that is, that when reviewing a sentence for
reasonableness, we consider “not only the length of the sentence but also the factors evaluated and
the procedures employed by the district court in reaching its sentencing determination.” Webb, 403
F.3d at 383. Emphasizing that “[j]udicial decisions are reasoned decisions,” Rita exhorts the
sentencing judge to satisfy the procedural requirement of “set[ting] forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468. The amount of reasoning
required varies according to context. Rita indicates that when a sentencing judge independently
concurs with the Sentencing Commission’s conclusion that a within-Guidelines sentence is
appropriate for a given defendant, the explanation for the sentence generally need not be lengthy.
Id. “Whe[n] the defendant or prosecutor presents nonfrivolous reasons for imposing a different
sentence, however, the judge will normally go further and explain why he has rejected those
arguments.” Id.
B. The District Court’s Sentencing Determination
       Wilms argues that the district court’s sentencing determination was procedurally
unreasonable because the district court accorded a presumption of reasonableness to the applicable
Guidelines range.
       1. The Presumption of Reasonableness on Appeal
        Like many of our sister circuits, we have chosen for appellate-review purposes to credit a
within-Guidelines sentence with a rebuttable presumption of substantive reasonableness. United
States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), cert. denied, --- U.S. ---, --- S. Ct. ----, 75
U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06-5275). In Rita, however, the Supreme Court clarified
that any “presumption” of substantive reasonableness is not a “presumption” as generally defined.
Rita, 127 S. Ct. at 2463. Black’s Law Dictionary states: “Most presumptions are rules of evidence
calling for a certain result in a given case unless the adversely affected party overcomes it with other
evidence. A presumption shifts the burden of production or persuasion to the opposing party, who
can then attempt to overcome the presumption.” BLACK’S LAW DICTIONARY 1203 (Brian A. Garner,
No. 06-1896               United States v. Wilms                                                                  Page 4


ed., 7th ed. 1999); see also id. at 1205 (defining “rebuttable presumption” as “[a]n inference drawn
from certain facts that establish a prima facie case, which may be overcome by the introduction of
contrary evidence”).
        The Rita Court, however, noted that the presumption of reasonableness “is not binding. It
does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a
particular burden of persuasion or proof lest they lose their case.” Rita, 127 S. Ct. at 2463. The
presumption also does not “reflect strong judicial deference of the kind that leads appeals courts to
grant greater factfinding leeway to an expert agency than to a district judge.” Id. Instead, the Court
explained, the presumption of reasonableness merely “reflects the fact that, by the time an appeals
court is considering a within-Guidelines sentence on review, both the sentencing judge and the
Sentencing Commission will have reached the same conclusion as to the proper sentence in the
particular case.” Id. “[T]he courts of appeals’ ‘reasonableness’ presumption, rather than having
independent legal effect, simply recognizes the real-world circumstance that when the judge’s
discretionary decision accords with the Commission’s view of the appropriate application of
§ 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Id. at 2465.
         2. The District Court’s Presumption of Reasonableness
       Although we review a district court’s sentencing determination for reasonableness, we have
explained:
         [A] district court’s job is not to impose a “reasonable” sentence. Rather, a district
         court’s mandate is to impose “a sentence sufficient, but not greater than necessary,
         to comply with the purposes” of section 3553(a)(2). Reasonableness is the appellate
         standard of review in judging whether a district court has accomplished its task.
United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006); accord Rita, 127 S. Ct. at 2465
(“We repeat that the presumption before us is an appellate court presumption.”). At the same time,
the mere fact that the district court utters the word “reasonableness” or recognizes that we apply a
presumption of reasonableness on appeal does not render its sentencing determination procedurally
unreasonable. See United States v. Davis, 458 F.3d 505, 511 (6th Cir. 2006) (“[T]he district court’s
reference to a reasonableness standard does not render [the defendant’s] sentence unreasonable in
the face of the district court’s satisfaction of the post-Booker sentencing mandates.”); United States
v. Cage, 458 F.3d 537, 541 (6th Cir. 2006) (“We decline to conclude that by using the term
‘reasonable’ or by acknowledging that the appellate court will apply a rebuttable presumption of
reasonableness to a sentence, the district court is itself applying that presumption.”).
       In this case, however, the district court went a step further, requiring the arguments presented
to “overcome   the presumption of reasonableness with respect to the sentencing guidelines in this
case.”1 J.A. at 192 (6/13/06 Sentencing Hr’g at 16). Wilms was ultimately sentenced below the
applicable Guidelines range, but the district court’s application of a rebuttable presumption that
Wilms should be sentenced within the Guidelines range requires us to vacate his sentence. If there
was any question under our prior caselaw whether such reasoning renders a district court’s



         1
            It appears to us that the district court otherwise took the relevant § 3553(a) factors into account, and it is
possible that the district court simply misspoke, stating that a rebuttable presumption applies but not actually applying
a presumption that Wilms should be sentenced within the applicable Guidelines range. However, in light of the Rita
Court’s clear admonition that a district court may not apply a presumption that a defendant should be sentenced within
the applicable Guidelines range, see Rita, 127 S. Ct. at 2465, and recognizing that the government repeatedly urged the
district court to do just that in this case, we cannot ignore the district court’s statements suggesting that it might have
applied such a presumption.
No. 06-1896               United States v. Wilms                                                              Page 5


sentencing determination unreasonable,2 there is no question after Rita. In no uncertain terms, the
Rita Court instructed that “the sentencing court does not enjoy the benefit of a legal presumption that
the Guidelines sentence should apply.” Rita, 127 S. Ct. at 2465. Moreover, even when reviewing
a sentencing determination on appeal, we recognize that the presumption of reasonableness “does
not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a
particular burden of persuasion or proof lest they lose their case.” Id. at 2463.
         Permitting the district court to apply a presumption of reasonableness to the applicable
Guidelines range would also conflict with the core reasoning of Rita. In permitting the courts of
appeals to apply a presumption of reasonableness to a within-Guidelines sentence, the Rita Court
relied on “the fact that, by the time an appeals court is considering a within-Guidelines sentence on
review, both the sentencing judge and the Sentencing Commission will have reached the same
conclusion as to the proper sentence in the particular case.” Id.; see also id. at 2465 (“[T]he courts
of appeals’ ‘reasonableness’ presumption, rather than having independent legal effect, simply
recognizes the real-world circumstance that when the judge’s discretionary decision accords with
the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is
probable that the sentence is reasonable.”). If the sentencing judge presumes that the defendant
should be sentenced within the applicable Guidelines range, however, it renders meaningless the fact
that both the sentencing judge and the Sentencing Commission reached the same conclusion, as such
a result would be preordained. Only when a sentencing judge makes an independent determination
of what sentence is sufficient, but not greater than necessary, to comply with the purposes of
§ 3553(a)—taking into account the advisory Guidelines range, the relevant § 3553(a) factors, and
any other nonfrivolous arguments presented in support of a particular sentence—can the appellate
presumption of reasonableness permitted by Rita be more than a return to the pre-Booker
mandatory-Guidelines regime. Because the district court in this case applied a rebuttable
presumption that Wilms should be sentenced within the applicable Guidelines range, we must vacate
his sentence.
                                              III. CONCLUSION
        Because the district court applied a rebuttable presumption that Wilms should be sentenced
within the applicable Guidelines range, we VACATE Wilms’s sentence and REMAND the case
for resentencing consistent with this opinion.




         2
            In Williams, for example, we stated: “Williams argues . . . that the district court improperly presumed the
Guidelines range to be reasonable. Assuming we agree with Williams’s interpretation, we nonetheless discern no error
in light of our holding above [adopting an appellate presumption of reasonableness].” Williams, 436 F.3d at 708. To
the extent that Williams suggests that a sentencing court may presume that a defendant should be sentenced within the
applicable Guidelines range, Williams has been abrogated by Rita, as explained here.
