Great Booker work not to be overlooked

On Friday, the Sixth Circuit delivered an important Booker ruling that should not get overlooked amongst the holiday fun and Enron sentencing buzz and lethal injection developments.  I first discussed the Buchanan ruling here, and now I want to spotlight again the concurrence by Judge Jeff Sutton.  Judge Sutton's discussion of post-Booker sentencing and reasonableness review is so thorough and thoughtful, it demands a full reading.  But especially worth emphasizing are these two key insights:

First, Judge Sutton, in explaining his support for a presumption of reasonableness for within guideline sentences, provides a detailed account of what a district court must do for a sentence to earn this presumption.  Here is his notable list (with cites omitted):

(1) the judge must make all findings of fact necessary to apply the guidelines to the defendant; (2) the judge must calculate the guidelines sentencing range correctly; (3) the judge must determine whether to grant a downward departure or an upward departure from the guidelines; (4) the judge must recognize her discretion to issue a sentence that varies from the guidelines; (5) the judge must consider the § 3553(a) factors in exercising her independent judgment about what an appropriate sentence should be; (6) the judge must account for any relevant statutory minimum and maximum sentences; and (7) the judge must give a reasoned explanation for the sentence.

Second, Judge Sutton makes this particularly important point about the extent of post-Booker discretion and the guidelines' regulation of departures: "in exercising that 'broad discretion' under Booker, importantly, the guidelines' restrictions on granting departures do not circumscribe a trial court's decision to grant a variance."