Explaining more fully my concern about the Eleventh Circuit's work in Ramirez

A number of commentors are concerned about my quick critique of the Eleventh Circuit work in US v. Ramirez, No. 07-13060 (11th Cir. Jan. 23, 2008) (available here).  Ramirez affirms an above-guideline sentence by relying heavily on Gall. 

One (unnamed) commentor assails me for a a lack of "objectivity" because I critique this affirmance of an above-guideline sentence but often praise affirmances of below-guidelines sentences.  This commentor encourages me to "Show some balance, or at least the illusion of balance!"  Up for justified challenge, let me explain in more "objective" detail the range of concerns I have with the Ramirez decision.

First, as a matter of questionable procedure, why is this Ramirez ruling issued as an unpublished decision without the defendant getting an opportunity for oral argument?  As written, the Ramirez ruling implies that Gall overrules at least three prior (post-Booker) Eleventh Circuit published opinions.  If this is what Ramirez means, shouldn't this opinion have been published? 

Second, as a matter of sloppy style, the Ramirez opinion devotes more than five full pages to reciting (applicable?) post-Booker precedents, but has only a few sentences discussing the case facts.  Here, in toto, is what the opinion informs the reader about the facts of the case under review:

Luis Ramirez [was convicted of] larceny of personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline range was 8-12 months, but the district court sentenced him to the statutory maximum of 60 months imprisonment.  Ramirez argues on appeal that the district court ... overemphasi[zed] his criminal history, [and] failed to consider the $1,000 loss amount, and ... nullified the two-level decrease he received for acceptance of responsibility.

So, all we know from the Ramirez opinion is that a defendant with an long criminal history stole $1000 of personal property and received the statutory maximum sentence after accepting responsibility.  We don't know what his true guideline range was because, as the USSC sentencing table shows, there is no guideline range of 8-12 months.  The actually range must have been either 8-14 months or 6-12 months (and I am guessing the latter).

Third, as a matter of suspect substance, the Ramirez opinion notes that, in a recent Valdes ruling, 500 F.3d 1291 (11th Cir. 2007), the Eleventh Circuit "vacated Valdes’s sentence and remanded to the district court because it was unclear whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and, therefore, the record was 'insufficient to permit the affirmance of the sentence.'"  Valdes seems to be exactly on point to justify a remand here.  However, without explaining whether Valdes has been overruled by Gall or is distinguishable, the Ramirez opinion affirms simply because "the district court properly calculated the advisory guideline range, considered the relevant § 3553(a) factors, articulated its reasons in open court, considered Ramirez’s arguments, and had a reasoned basis for its decision."

Finally, as a matter of dubious doctrine, the Ramirez opinion cites Rita, but that SCOTUS ruling makes clear that circuit courts must do more than police just the procedural reasonableness of sentencing decision-making.  Though Justice Scalia advocated review only of procedural reasonableness in his concurrence, the Rita majority made very clear that substantive reasonableness review was important:

In sentencing, as in other areas, district judges at times make mistakes that are substantive.  At times, they will impose sentences that are unreasonable.  Circuit courts exist to correct such mistakes when they occur.

Despite all these problems with the Ramirez opinion, I am still not prepared to call the outcome wrong until I know more about the underlying facts.  But all the points above raise a lot of red flags.  That's why in my original post I stated that I have a "concern" about the "troubling" Ramirez ruling because the "panel seems to essentially abdicate its responsibility to assess the substantive reasonableness of a stat-max sentence when the defendant had viable arguments that his sentence was far greater than necessary in light of all the 3553(a) consideration." 

As for my "objectivity" and "balance," I do not think I have ever hidden my view (bias?) that many federal prison sentences for non-violent crimes seem too long in light of Congressional purposes.  At least seven SCOTUS Justices seemed to ratify that view through the rulings in Gall and Kimbrough.  Meanwhile, I have also indicated my view (bias?) that many federal and state sentences for violent crimes seem too short.  Because Ramirez apparently involves a non-violent crime, I am especially curious about what facts justified a stat max sentence, and I really wish the Eleventh Circuit had done a more effective job assessing and explaining why that state max sentence was substantively reasonable.