Unpublished Sixth Circuit ruling addresses departure/variance distinction

The Sixth Circuit released an interesting unpublished ruling in US v. Simpson, No. 08-5293 (6th Cir. Sept. 16, 2009) (available here), which finds procedurally unreasonable a district court sentencing determination that failed to properly distinguish its departure authority and its post-Booker variance authority.  Here are some key sections of the ruling (with cites left out):

Both at sentencing and in the STR, the court followed the same model of (1) calculating the Guidelines range; (2) determining if any of the mitigating factors presented “extraordinary circumstances” sufficient to justify a Guidelines departure; and (3) determining what sentence within the relevant range was justified in light of the factors set forth in § 3553(a). This approach is impermissible for several reasons....

This mistake significantly affected the sentencing court’s understanding of its authority because variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a) include a much broader range of discretionary decisionmaking than departures. The district court’s statements indicate that it felt  bound by the pre-Gall standard of review and the Guidelines’ restrictions on departures that require extraordinary or exceptional circumstances to justify a below-Guidelines sentence.  As a result, the court dismissed some of Simpson’s mitigation evidence as unworthy of consideration when, in fact, the court was required to consider that evidence.

I am not sure what bothers me more — the fact that these basic issues remain murky nearly five years after the Booker ruling or the fact that the Sixth Circuit did not think clarifying these issues justified publishing this seemingly important Simpson decision.