Fifth Circuit speaks directly to post-Booker standard of review

I am back at the computer after a morning of SCOTUS mooting and Booker lecturing, and there is lots of news to report.  Though I am still taking in the sentencing work of Judge Sifton in Simon and Judge Goodwin in Gray (on which I will say more later), the Fifth Circuit has my attention shifted briefly to appellate issues with its decision in US v. Villegas, No. 03-21220 (5th Cir. Mar. 17, 2005) (available here), in which the court re-examines “the proper standard of review to employ in our resolution of a claim that the district court improperly applied the Sentencing Guidelines in calculating the sentencing range under the previously mandatory, now advisory, sentencing guideline regime.”

Here is what the Villegas court says about the standard of review:

We conclude that when a district court has imposed a sentence under the Guidelines, this court continues after Booker to review the district court’s interpretation and application of the Guidelines de novo.  We do not speak in this opinion, however, to the situation in which a district court elects to exercise its post-Booker discretion to impose a non-Guidelines sentence….

[N]othing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court’s interpretation and application of the Guidelines de novo.

Notably, in Villegas the Fifth Circuit’s de novo review leads to a conclusion that a gun enhancement under the guidelines was improperly applied. In turn, explains the court, because “the district courts misapplication of the Guidelines requires a remand in this case, we need not consider Villegas’s argument that his Sixth Amendment rights were violated.”