Intriguing Fifth Circuit reasonableness ruling

The Fifth Circuit has issued a notable ruling on post-Booker sentencing and reasonableness review in US v. Tzep-Mejia, No. 05-40386 (5th Cir. Aug. 16, 2006) (available here).  Though Tzep-Mejia has an off-topic and gratuitous endorsement of circuit rulings rejecting crack variances, the actual holding is an interesting endorsement of how to sentence after Booker without properly calculating an applicable guideline range.  Here is a snippet:

Tzep's sentence did not "result" from an incorrect application of the Guidelines.  Based on facts presented in the PSIR, the district court carefully considered the two possible Guideline ranges that could result depending on how it ruled on the defendant's objection to the crime of violence enhancement.  The court then rejected both options and elected to exercise its discretion to impose a non-Guideline sentence.

Both the Second and Eighth Circuits have recognized that the approach followed by the district court in this case is an appropriate one.  See United States v. Haack, 403 F.3d 997 (8th Cir. 2005); United States v.Crosby, 397 F.3d 103 (2d. Cir. 2005).  In Haack, the court stated: "[t]here may be situations where sentencing factors may be so complex, or other § 3553(a) factors may so predominate, that the determination of a precise sentencing range may not be necessary or practical. However, in those cases the court should be careful to identify potential applicable ranges, the reason why a particular range is not being selected, and other § 3553(a) factors that predominate." Haack, 403 F.3d at 1003 (citing Crosby).