Important Tenth Circuit work on reasonableness

The Tenth Circuit, perhaps inspired by its pretty new website, has issued two significant decisions addressing reasonableness this week:

• Yesterday, in US v. Cage, No. 05-2079 (10th Cir. June 8, 2006) (available here), the panel concludes that "[b]ecause the facts of this case are not so dramatic as to justify such an extreme divergence from the advisory guidelines range, the district court's sentencing decision was unreasonable."  Though yet another reversal of a below-guideline sentence, Cage is a thoughtful opinion which thoroughly discusses reasonableness review (and also cites this blog while expressing concern that "below guidelines-range sentences are [seem to be] treated less deferentially by appellate courts than above guidelines-range sentences").  There is also an interesting concurrence in Cage discussing alternative sentences.

• Earlier this week, in US v. Hernandez-Castillo, No. 05-2157 (10th Cir. June 6, 2006) (available here), the panel in its "Conclusion" section comes as close as possible to declaring a within-guideline sentence unreasonable (but does not reverse because this issue was not raised by the defense).  After rejecting a guideline-calculation-error argument, the panel says: "We feel compelled to comment, however, that we have grave misgivings regarding the appropriateness of this 57-month sentence. ... One might consider this the obvious case where an exercise of Booker discretion could mitigate a sentence that does not fit the particular facts of the case, but unfortunately for [the defendant], his lawyer has not challenged the reasonableness of the sentence."

If time permits, I may have more to say about both these interesting rulings over the weekend.