Split Sixth Circuit finds below-guideline sentence substantively unreasonable

In a long opinion that thoughtfully seeks to unpack the standards for substantive reasonableness review, a split Sixth Circuit panel in US v. Funk, No. 05-3708 (6th Cir. July 22, 2008) (available here), reverse a sentence well below the guidelines as substantively unreasonable.  There is a lot of Funky spunk in both the majority opinion's effort to make sense of reasonableness review and also in Chief Judge Boggs' brief dissent.  These portions of the dissent effectively spotlight why substantive reasonableness review is so challenging:

This case represents essentially a judgment call under the rather unclear standard of “reasonableness” that we have been given by the Supreme Court in the wake of Rita, Kimbrough, and Gall.  Although I recognize that it is a close question, I am persuaded by the emphasis on the discretion of district courts in the recent Supreme Court cases that the sentence here should be affirmed....

In logic, I find it difficult to express a way in which a judge can adequately say that a sentence is “too much” or “too little” in any form of words.  As I read the trial transcript, the district judge obviously knew the characteristics of the defendant before him, considered the advice of the guidelines, and decided to reject it, invoking the language of § 3553(a) as to the factors that he considered.

While a more extensive, fact-laden, or lyrical exegesis might have been possible or preferable, what I take from the record is that the judge did consider thoughtfully the facts of this case and did enough that he did not abuse his discretion.

Of course, Judge Batchelder (who authored the majority opinion in Funk) obviously disagreed.  interestingly, a district judge sitting by designation, Chief Judge Bell of the WD of Michigan, cast the deciding vote.  Given this split, this case might have the potential for en banc review, although the case has already been kicking around the courts for more than three years.