Reasonableness review round-up . . . calling Justice Scalia

In his dissent from the remedial opinion in Booker, Justice Scalia closed with some trenchant observations about reasonableness review.  Among other points, Justice Scalia asserted that this review "requires courts of appeals to evaluate each sentence individually for reasonableness, rather than apply the cookie-cutter standards of the mandatory Guidelines."  But Justice Scalia recognized that circuit courts "might seek refuge in the familiar and continue (as the remedial majority invites, though the merits majority forbids) the appellate sentencing practice during the last two decades."

With lots of reasonableness action this month (including major rulings recently from the Third, Fourth, Fifth, Sixth and Tenth Circuits), the look of reasonableness review is finally coming into focus.  And cookie-cutter is a pretty good (and appropriately pejorative) description of what we are seeing, with the majority of circuits embracing a "presumption of reasonableness" for within-guidelines sentences.

As explained here, I find a "presumption of reasonableness" troubling for constitutional, statutory and practical reasons.  Moreover, the reasonableness cookie-cutting look pretty ugly as the circuit courts are creating de facto a kind of post-Booker mandatory minimum guideline system: all within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable.

Here is a circuit-by-circuit review concerning the adoption of a "presumption of reasonableness" for within-guidelines sentences: 

• First: Major en banc hearing in February, no articulated standard yet.
• Second: No articulated standard yet (but see this unpublished exposition)
• Third: Recently rejected presumption of reasonableness (details here)
• Fourth: Recently adopted presumption of reasonableness (details here)
• Fifth: Recently adopted presumption of reasonableness (details here)
• Sixth: Recently adopted presumption of reasonableness (details here, but see here)
• Seventh: Adopted, and repeatedly reiterates, presumption of reasonableness
• Eighth: Adopted, and repeatedly reiterates, presumption of reasonableness
• Ninth: Recently adopted, then unadopted, presumption of reasonableness (details here)
• Tenth: Recently adopted presumption of reasonableness (details here)
• Eleventh: Perhaps has rejected presumption of reasonableness (details here)
• DC: No articulated standard yet

It will be interesting to see if SCOTUS will even take up this issue, especially if (when?) the First Circuit or perhaps another circuit expressly rejects a presumption of reasonableness for within-guideline sentences.  It bears recalling the current SCOTUS sentencing head-count, which highlights that all four of the Booker remedy dissenters and only three Justices supporting the Booker remedy remain on the Court.  Consequently the big question might be what Chief Justice Roberts ("Sca-Roberts"?) and Justice Alito ("Sc-Alito"?) think of review for reasonableness.