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). See United States v. Webb, 403 F.3d 373, 385 n.9 (6th Cir. 2005) (declining "to indicate what weight the district courts must give to the appropriate Guidelines range, or any other § 3553(a) factor"); see also id. at 385 (Kennedy, J., dissenting). 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. See United States v. Booker, 125 S. Ct. 738, 757 (2005) (holding that the modified Federal Sentencing Act "requires a sentencing court to consider Guidelines ranges, but . . . permits the court to tailor the sentence in light of other statutory concerns as well" (citation omitted)).
Judge Cook went on to illustrate that this presumption shifts the burden to the defendant to prove that the guideline sentence is unreasonable. The last line of the opinion sums it up:
In the absence of a showing that the district court imposed an “unreasonable” sentence, we affirm.What is notable about the adoption of the rebuttable presumption standard in this case is the total lack of any real legal reasoning and a passing reference to Booker as support for shifting the burden to the defendant to show that a guideline sentence is unreasonable. One might argue that to shift the burden to the defendant to show that a guideline sentence is unreasonable is nothing more than another way of approving of a mandatory guideline regime, which, Booker clearly prohibits.
February 1, 2006, 11:55 a.m. CST
One of my esteemed colleagues, Sumter Camp, added some comments to my post and I thought they were important enough to place in the post itself so that everyone could benefit. Sumter wrote:
This opinion is contrary to a number of other Sixth Circuit
cases defining either the standard of review or the procedure the Court will use to review for reasonableness. See, e.g. Webb, 403 F.3d 373, 385 fn 9 (6th Cir. 7/19/05), which states, "we also decline to hold that a sentence within a proper Guidelines range is per-se reasonable. Such a per-se test is not only inconsistent with the meaning of 'reasonableness’, (cite omitted), but is also inconsistent with the Supreme Court’s decision in Booker, as such a standard ‘would effectively re-institute mandatory adherence to the Guidelines.’"; See, also, the description of appellate review in United States v. McBride, __ F.3d __, 2006 WL 89159 (6th Cir. 1/17/06), e.g., "A district court’s failure to explicitly consider the section 3553(a) factors without other evidence in the record demonstrating that they were thoroughly considered by the district court would result in a procedurally unreasonable sentencing determination requiring us to vacate and remand for resentencing." Slip Op. 4, fn. 3. The court in Williams goes out of its way to reach an issue that should have been precluded by the Circuit's rule prohibiting one panel from over-ruling another panel's decision. Hopefully, Williams will ask for rehearing and/or rehearing en banc given that the Circuit's law was clear before this opinion, but has now been muddied.
Note: Mr. Williams is represented by Dianne Smothers, AFPD, Western District of Tennessee, who has assured me that rehearing and/or reahearing en banc will be sought.