Ninth Circuit decides to punt reasonableness en banc

In an order that I cannot yet find on-line, the Ninth Circuit has decided en banc to postpone its decision on reasonableness review in Zavala and Carty (lots of background here) until after the Supreme Court decides Claiborne and Rita (lots of background in this index).  Here is the text of the order I was sent via e-mail, which includes a notable footnote from Judge Kozinski:

We ordered rhrg en banc in these cases on 8/23/06, in order to settle the law of this circuit in light of US v. Booker, 543 US 220 (2005).  We heard oral argument and ordered the cases submitted on 10/6/06. Since then, the US Supreme Court has granted writs of certiorari in Claiborne v. US, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5618) and Rita v. US, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5754).

The issues in Claiborne are: 1) Was the district court's choice of below-Guidelines sentence reasonable? 2) In making that determination, is it consistent with Booker to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

The issues in Rita are: 1) Was the district court's choice of within-Guidelines sentence reasonable? 2) In making that determination, is it consistent with Booker to accord a presumption of reasonableness to within-Guidelines sentences? 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 USC Section 3553(a) factors and any other factors that might justify a lesser sentence?

Given overlap of the issues raised, we vacate submission of Zavala and Carty pending the decisions by the Supreme Court in Claiborne and Rita.  Meanwhile, our 8/23/06 order remains in effect.  Accordingly, the panel opinions shall not be cited as precedent by or to this court or any district court in the circuit.

FN1: Judge Kozinski would plough forward to a decision and give the Supreme Court the benefit of our thinking, inspired by the exceptionally fine briefing and argument presented by the parties and most amici.