Major split Second Circuit ruling on reasonableness

The Second Circuit  has issued another notable opinion on reasonableness today in US v. Jones, No. 05-2289 (2d Cir. Aug. 2, 2006) (majority here, dissent here), which approves as reasonable a below-guideline sentence over the government's objections.  But, the decision, authored by Judge Jon Newman, engendered a strong dissent from Judge Walker.

Because the majority opinion in Jones is written by one of my old bosses, I am inclined to appreciate every line.  For example, in light of this ugly pattern of reasonableness outcomes in the circuits, I especially like this passage:

If we are to be deferential when the Government persuades a district judge to render a non-Guidelines sentence somewhat above the Guidelines range, we must be similarly deferential when a defendant persuades a district judge to render a non-Guidelines sentence somewhat below the Guidelines range.  Obviously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up.

But Judge Walker gets in his own shots in his dissent, which closes with this expression of concern about sentencing disparities in the wake of Booker:

[Through the panel's opinion,] we invite a return to the days of wide-open discretion at the expense of both reduced sentencing disparity and fairness.  This is an unhealthy trend because the government and defendants alike will come to view sentencing as an arbitrary exercise more informed by which district judge is assigned than by the factors outlined in § 3553(a), and the public, including its elected representatives, will find evidence to support the perception that, in sentencing, courts are more home to judicial wilfulness than the law.