Interesting (and interestingly timed) Ninth Circuit reasonableness work

Today was the big en banc argument on reasonableness review in the Ninth Circuit (relevant links below).  I am hoping that someone in attendance at the argument might file a field report (although the audio should soon be available here). 

In the meantime, the Ninth Circuit issued an opinion today in US v Nichols, No. 03-30503 (9th Cir. Oct. 6, 2006) (available here), which interesting has an extended dicussion of reasonableness review.  Nichols is interesting for lots of reasons (and has lots of aspects).  It especially spotlights that prosecutors may often be far more lenient in the exercise of their discretion than judges.  In Nichols, the government "explicitly recommended a 30-month sentence" for a defendant with a "horrendous" criminal history.  But the sentencing judge, following 3553(a), concluded he needed instead to impose a sentence of 57 months.  The Ninth Circuit in Nichols finds this longer sentence reasonable, concluding with this sentiment:

The district court's approach was reasoned and addressed factors specified in § 3553(a).  More importantly, Nichols has not demonstrated that the district court overlooked any significant factor, gave improper weight to any factor or otherwise imposed an unreasonable sentence.  It may be that a 30-month sentence also would have been reasonable, but the issue here is whether the sentence imposed was unreasonable. It was not.

Recent posts about reasonableness review in the Ninth Circuit:

• Ninth Circuit going en banc on reasonableness review
• Ninth Circuit clarifies en banc reasonableness issues
• Judges announced for en banc reasonableness fun in the Ninth Circuit
• Defendants' brief in Ninth Circuit Booker en banc
• Government's brief in Ninth Circuit Booker en banc
• With reasonable(ness) friends like these...