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Sentencing Law and Policy
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Notable (and sneaky?) footnote in Ninth Circuit ruling

By Douglas Berman

In another of the seemingly endless rulings about how to apply federal sentencing rules about what qualifies as a “crime of violence,” today a panel of the Ninth Circuit in US v. Guerrero-Velasquez, No. 05-30066 (9th Cir. Jan. 19, 2006) (available here), has dropped a notable Booker footnote.  Here is what Judge Jay Bybee says for the Ninth Circuit in footnote 1 of Guerrero-Velasquez:

We realize, of course, that the sentencing guidelines are advisory and not mandatory. See United States v. Booker, 543 U.S. 220 (2005)United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).  However, the guidelines are still an important aid for district judges seeking to determine the appropriate sentence for a defendant and which help to maintain uniformity in sentencing throughout the country. It is therefore appropriate that we consider whether the district judge correctly interpreted and applied the guidelines below.  We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable.

I have bolded the final line of this footnote because I believe it breaks new ground for the Ninth Circuit.  Though a few other circuits have expressly stated that a within-guideline sentence is “presumptively reasonable,” I do not believe that the Ninth Circuit has a ruling to this effect.  (Notably, Judge Bybee does not provide a cite for this quite significant assertion, and it is double-dicta in the context of the issues in Guerrero-Velasquez.)

I may have missed the Ninth Circuit previously declaring that a within-guideline sentence is “presumptively reasonable” after Booker (and perhaps readers or the folks at the Ninth Circuit Blog might clear this up for me).  But if I am right that this assertion does break new ground for the Ninth Circuit, I am a bit troubled that this important conclusion gets tucked into a footnote in a case which is not even about reasonableness review.  Or, to put my concern in terms of the Sixth Circuit’s colorful metaphor, it seems that in Guerrero-Velasquez the Bybee bullfrog was eager to jump out of the Ninth Circuit’s Booker wheelbarrow.

UPDATE:  This post by Jon Sands at the Ninth Circuit Blog confirms my concerns about the unreasonable reasonableness dicta in Guerrero-Velasquez.