Unreasonably disappointing en banc result in the 8th Circuit

As detailed in this post, back in June the Eighth Circuit decided to reconsider, en banc, the wisdom of US v. Christenson, No. 04-2084 (8th Cir. Apr. 13, 2005) (available here). Christenson was one of a big set of decisions in April in which the Eighth Circuit decided that reasonableness review under Booker was to be akin to review for abuse of discretion.  In Christenson, the government filed a 5K1.1 departure motion and recommend a sentence of 216 months’ imprisonment down from the otherwise applicable sentence of 240 months.  But the district court sentenced Christenson to 60 months (even though defense counsel had proposed a sentence of 144 months), and the Eighth Circuit panel concluded this sentence “was not unreasonable.” 

The government moved for, and obtained, rehearing en banc in Christenson, and I was hoping the Eighth Circuit would use Christenson to expand on the meaning of reasonableness review after Booker.  Today the Eighth Circuit handed down this one-sentence order in Christenson, which states: “On rehearing en banc, the district court’s judgment is affirmed by vote of an equally divided court.”  What a let down, especially because the order does not even indicate which of the 12 circuit judges voted which way.  And, to add to the disappointment, I presume we should not expect any forthcoming opinions detailing the reasons why the court was equally divided.