Third time's (almost) the charm in Tenth Circuit sentencing case

In an interesting decision in a case that may seem to the Tenth Circuit to be never-ending, a panel today affirms an above-guideline sentence in US v. Wittig, No. 07-3051 (10th Cir. June 17, 2008) (available here).  Here is how the panel opinion starts:

David C. Wittig appeals — for the third time — from his sentence for conspiracy, bank fraud and money laundering. We vacated his first two sentences (51 months imprisonment and 60 months imprisonment). United States v. Weidner, 437 F.3d 1023 (10th Cir. 2006) (Wittig I); United States v. Wittig, 206 Fed. Appx. 763 (10th Cir. 2006) (unpublished) (Wittig II). The district court has now sentenced Wittig to 24 months imprisonment, followed by a three-year term of supervised release with special conditions, including an occupational restriction. United States v. Wittig, 474 F. Supp. 2d 1215 (D. Kan. 2007) (Wittig III). Wittig appeals from the prison sentence and the occupational restriction. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a), we affirm the sentence but reverse the occupational restriction.

There are numerous interesting aspect to this round of the Wittig sentencing, but most notable is a concurring opinion by Judge Hartz that is joined by both other members of the panel (which seems a bit unusual to me). 

In this concurring opinion, Judge Hartz complains about the Tenth Circuit's "this court's recent jurisprudence regarding substantive reasonableness of sentences," which he feels have turned substantive reasonableness review into "an empty gesture."  Judge Hartz advocates "a different approach" to substantive reasonableness

In my view, a sentence is substantively unreasonable if the only reason that the length is outside the range of what judges ordinarily impose for “defendants with similar records who have been found guilty of similar conduct” is that the sentencing judge has an idiosyncratic view of the seriousness of the offense, the significance of the defendant’s criminal history and personal qualities, or the role of incarceration in the criminal-justice system.  Determining whether a particular judge has idiosyncratic views could be problematic, except that the United States Sentencing Commission has, in large part, developed its Sentencing Guidelines by studying the sentences being handed down by district judges throughout the country.  See Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007).  Thus, the consideration of the Guidelines Sentencing range required by § 3533(a)(4) ordinarily provides the sentencing judge with knowledge of sentencing practice within the federal judiciary. A significant variance from that practice should be considered unreasonable if it can be justified only by disagreement with the general views of other judges.

I am not sure I accept (or even entirely understand) this proposed "different approach" to substantive reasonableness That said, I do share the concern that substantive reasonableness review may have become (or will become) an empty gesture in lots of cases. 

But, critically, my chief concern is not that some idiosyncratic views of federal district judges may influence sentences (especially since there is little doubt that idiosyncratic views and plea practices of federal prosecutors surely influence sentences all the time without being subject to any kind of review or even transparency).  Rather, my chief concern is that sometime (perhaps often) the idiosyncratic aspects of the guidelines (such as enhancements based on acquitted conduct) influence sentences and yet, nearly 3.5 years after Booker, only a single within-guideline sentence has even been declared substantively unreasonable by a circuit court.