Notable new perspective on reasonableness review after Booker

I have long thought that appellate review was a weakest link in the Booker remedy, both jurisprudentially and practically.  Thus, this new piece on SSRN by Briana Rosenbaum really caught my eye. The piece is titled "Righting the Historical Record: A Case for Appellate Jurisdiction Over Appeals of Sentences for Reasonableness Under 28 U.S.C. § 1291," and here is the abstract:

This Article is the first to critically analyze the jurisdictional basis for the Supreme Court’s mandate in United States v. Booker, 543 U.S. 220 (2005), that all courts of appeals review the length of criminal sentences for “reasonableness.”  In Booker, the Court created a new kind of appellate review: review of all criminal sentences for “reasonableness.”  As a result, the availability of appellate review has expanded greatly.  Data from the U.S. Sentencing Commission shows that, since Booker, the number of sentence appeals has risen. 

Unfortunately, the Court in Booker did not explain the jurisdictional basis for its expanded “reasonableness review.”  The omission is not trivial.  For decades, federal courts have held that courts of appeals do not have jurisdiction to review the length of criminal sentences.  The Supreme Court may not increase the jurisdiction of these courts; the Constitution gives this power to Congress alone.  Accordingly, if there is no basis for jurisdiction, the Supreme Court usurped Congress’ power to expand the jurisdiction of the federal courts.  Despite this, courts of appeals have unanimously followed the Supreme Court mandate to review sentences for reasonableness, with little more justification than “because the Supreme Court said so.”

This Article, for the first time, examines the historical and legislative underpinnings of appellate review of criminal sentences in an attempt to find a justification, if any, for Booker’s expanded appellate review.  The Article concludes that courts of appeals have indeed had jurisdiction under 28 U.S.C. § 1291 to review the length of sentences, and have had such jurisdiction since at least 1891.  Although courts routinely rejected appeals of the length of sentences for lack of “jurisdiction” before Booker, they did so erroneously, relying on older case law without fully analyzing the basis for those decisions. In fact, this “rule of non-review” was based not on jurisdiction, but on a policy of deference to the sentencing judge -- a policy that can be changed at any point, by either Congress or the Supreme Court.  In Booker, the Supreme Court exercised such a power. For the first time, this Article provides the correct jurisdictional basis for the Booker decision, and, at the same time, rights the historical record on jurisdiction over appeals of criminal sentences.