Seventh Circuit on departures and reasonableness review

The Seventh Circuit today in US v. Johnson, No. 04-1463 (7th Cir. Oct. 14, 2005) (accessible here), affirmed a sentence in a child pornography case in which, pre-Blakely, the district judge departed upward from a sentencing range of 70 to 87 months' imprisonment to a final sentence of 236 months' imprisonment.  The case involved images which the sentencing judge "characterized as the most shocking he had seen in sixteen years on the bench," and the Seventh Circuit's opinion in Johnson provides a thorough and thoughtful explanation for its conclusion that this above-guideline sentence is reasonable.

Considering its other decisions discussing reasonableness over the last few weeks (discussed here and here and here), the Seventh Circuit merits praise for working hard to try to give reasonableness review some real content.  Despite these efforts, however, I fear that quixotic character of appellate review for reasonableness, combined with a strong institutional disposition in the circuits to affirm most sentences, likely means that reasonableness review will always be an elusive concept in the post-Booker world.  (Ever the optimist, though, I have some hope that whenever we get some data from the USSC on appellate issues, we might find that reasonableness review has at least a few predictable features.)

One interesting facet of this latest Johnson decision is how the Seventh Circuit talks about departures in the post-Booker world.  As noted way back in this February post, the USSC and others have urged sentencing judges to consider and address departures and variances distinctly.  But, confirming my instinct that these concepts might get collapsed post-Booker, consider this passage from Johnson:

Johnson's framing of the issue as one about "departures" has been rendered obsolete by our recent decisions applying Booker.  It is now clear that after Booker what is at stake is the reasonableness of the sentence, not the correctness of the "departures" as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.  United States v. Castro-Juarez, No. 05-1195, 2005 WL 2417065, at *3 (7th Cir. Oct. 3, 2005) ("the question . . . is ultimately the reasonableness of the sentence the district court imposed, not the court's application of a guideline authorizing an upward departure").  Now, instead of employing the pre-Booker terminology of departures, we have moved toward characterizing sentences as either fitting within the advisory guidelines range or not.