Second Circuit affirms above-guideline sentence

As I have noted before here and here, it seems that the circuit courts through reasonableness review are creating de facto a kind of post-Booker mandatory minimum guideline system: all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being deemed unreasonable.  Yesterday, as detailed here, the Eighth Circuit reversed three below-guideline sentences; today the Second Circuit affrims an above-guideline sentence in US v. Fairclough, No. 05-2799 (2d Cir. Feb. 28, 2006) (available here).  Here is a court’s summary of its work in Fairclough:

The defendant-appellant argues that the District Court violated the Sixth Amendment and ex post facto principles when it applied United States v. Booker, 543 U.S. 220 (2005), to conduct that occurred prior to that decision and sentenced him to a term above the United States Sentencing Guidelines range established by his admissions.  He also argues that his sentence is unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a).  We hold that district courts do not violate ex post facto principles by applying the remedial holding of Booker to pre-Booker conduct, that the defendant-appellant’s Sixth Amendment rights were not violated, and that the defendant-appellant’s sentence was reasonable.