Eleventh Circuit confirms within-guideline sentences are reviewable post-Booker

Echoing recent decisions of the Seventh and Eighth Circuits, the Eleventh Circuit today US v. Martinez, No. 04-12706 (11th Cir. Jan. 9, 2006) (available here) clarifies that “that a post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law pursuant to § 3742(a)(1).”  I suspect that, before long, the government will have officially lost this jurisdictional war in every circuit — i.e., I will be surprised if even a single circuit accepts the government’s contention that circuit courts lack jurisdiction to review the reasonableness of correctly-calculated within-guideline sentence.

However, though the government lost this jurisdictional war in Martinez, it won the reasonableness battle — i.e., the Eleventh Circuit affirmed the defendant’s within-guideline sentence as reasonable.  Indeed, it has now been almost a full year since Booker, and to my knowledge we still have not seen one single circuit court decision reversing a correctly-calculated, within-guideline sentence as unreasonable.  Unless and until the circuit courts start putting more teeth into reasonableness review, defendants are just claiming Pyrrhic victories when prevailing in the jurisdictional war.