DC Circuit splits on reasonableness review

Though I'm on the road, the sentencing news never stops.  Fortunately, How Appealing has this report on the interesting doings from the DC Circuit today:

"In my judgment, the majority opinion illustrates the magnetic pull that the Guidelines still occasionally exert over appellate courts in cases involving sentences outside the Guidelines range." So writes Circuit Judge Brett M. Kavanaugh, dissenting from a decision that a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued today. Circuit Judge Janice Rogers Brown wrote the majority opinion, in which Circuit Judge Douglas H. Ginsburg joined.

UPDATE:  Both thoughtful opinions in In re Sealed Case, No. 076-3132 (DC Cir. June 3, 2008) (available here) merit a close read.  And these closing statement from the majority emphasize procedural points that I think are very important as the post-Booker world continues to evolve:

The absence of a statement of reasons is prejudicial in itself because it precludes appellate review of the substantive reasonableness of the sentence, United States v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005), thus “seriously affect[ing] the fairness, integrity, or public reputation of judicial proceedings,” United States v. Williams, 488 F.3d 1004, 1008 (D.C. Cir. 2007).  A district judge “must adequately explain the chosen sentence . . . to promote the perception of fair sentencing.” Gall, 128 S. Ct. at 597. It is important not only for the defendant but also for “the public to learn why the defendant received a particular sentence.” Lewis, 424 F.3d at 247. Arbitrary decisionmaking undermines “understanding of, trust in, and respect for the court and its proceedings.” Id. We assume Appellant’s sentence of eighteen months was not randomly selected, but the absence of any explanation makes it seem so.  Thus, a failure to comply with § 3553(c) causes grave institutional harm, as well as simultaneously depriving the defendant of the benefit of our review.  This failure is therefore plain error.