Sixth Circuit embraces presumption of reasonableness

This morning through a brief opinion in US v. Williams, No. 05-5416 (6th Cir. Jan. 31, 2006) (available here), the Sixth Circuit joined a few other circuits in expressly declaring that a within-guideline sentence is presumptively reasonable.  Here is some key language from Williams:

Although several of our sister circuits have concluded that any sentence within the applicable Guidelines range garners a presumption of reasonableness, this court has yet to articulate what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a).  We now join several sister circuits in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness.  Such a presumption comports with the Supreme Court’s remedial decision in Booker.

Folks interested in this issue should also know that the First Circuit has scheduled an argument for next week to consider en banc whether to adopt such a presumption.  The buzz I have heard is that some judges on the First Circuit may not be too keen on such a presumption. 

I am concerned about an appellate presumption of reasonableness because, though such a presumption may comport “with the Supreme Court’s remedial decision in Booker,” I am not sure it comports with the Supreme Court’s merits decision in Booker.  Indeed, I am trying to finish up a draft of an article in which I suggest that, at least in cases involving judicial fact-finding to support a higher guideline range, appellate courts ought to be applying a presumption of unconstitutionality to any within-guideline sentence.  I hope to say more about this (crazy?) idea in the days ahead.