Fifth Circuit finds reliance on national sentencing statistics unreasonable

Yesterday proved to be a tough day for defendants who had received below-guideline sentences from district courts.  In addition to previously-noted reversals in the Third Circuit and in the Eighth Circuit, I now just saw another similar circuit reasonableness reversal in US v. Willingham, No. 06-11106 (5th Cir. Aug. 20, 2007) (available here).  Here is the opening paragraph of the Willingham opinion:

The government appeals, contending that the defendant’s non-Guidelines sentence, which was substantially below the advisory range under the Guidelines, is unreasonable.  The question presented is whether the sentence is unreasonable because the district court departed downward based on the conclusion that imposing a Guidelines sentence would create an unwarranted disparity between the defendant’s sentence and the national average for sentences under the same Guidelines section.  We hold that the sentence is unreasonable and remand for resentencing.

Intrigingly, on the same day it reversed as unreasonableness a district court’s decision to go 33 months below the guideline range in Willingham, the same panel of judges affirmed as reasonableness a district court’s decision to go 33 months above the guideline range in US v. Sanchez-Ramirez, No. 06-40968 (5th Cir. Aug. 20, 2007) (available here).