Critical dicta(?) for post-Booker appellate review

A sharp reader spotted that the 11th Circuit’s decision today in Talley (discussed here) has some very important dicta(?) on a key post-Booker issue that I believe is being litigated in a number of circuits.  Talley says that “either a defendant or the government can appeal a sentence within the Guidelines range and argue that it is unreasonable.”  However, I believe DOJ has been arguing in a number of circuits that, under the strict terms of 18 USC 3742, appellate courts lack jurisdiction to review a within-guideline sentence.

I surmise from the 11th Circuit’s opinion that this important jurisdiction issue was not fully briefed in Talley.  But it now appears to have been implicitly decided.  I thus return again to the point made in this post: reasonableness review, by producing and perpetuating doctrinal confusion, may end up increasing rather than decreasing sentencing disparities in the wake of Booker.