NINTH CIRCUIT DECLINES TO ADOPT "REASONABLENESS" STANDARD FOR GUIDELINES SENTENCES
In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough.
Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no. 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption.
The 9th recognizes that a Guideline sentence will usually be reasonable, but that stating there is a presumption imports "baggage" of an evidentiary nature when, on appeal, and in light of the nonbinding nature of the Guidelines, serves no purpose.
The opinion lays out the steps a court should follow, emphasizing the need for correct procedure to be followed by substantive review. The standard is abuse of discretion as to reasonableness.
The concurrences are interesting. Kozinski states that the majority adopts a presumption, but is just afraid to call it that. Silverman chides the majority for not adopting a presumption of reasonableness, which he reads the Supremes as permitting. As for the cases, the 9th affirms the sentences on both as reasonable.
Still, the opinion is a clear indiction of the tremendous discretion the sentencing court now enjoys. Carty will certainly make the "most-cited" list for the 9th.
U.S. v. Carty , No. 05-10200 (3-24-08) (en banc).
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