Split Eleventh Circuit panel discusses reasonableness review at great length

More than a full decade after the Supreme Court's Booker decision, federal circuit courts and judges continue to struggle with their post-Booker responsibility to review sentences for reasonableness.  That struggle is on full display today in the lengthy Eleventh Circuit panel ruling in US v. Rosales-Bruno, No. 12-15089 (11th Cir. June 19, 2015) (available here). The start of Chief Judge Carnes' opinion for the Court provide a crisp outline of the "sole issue" before the appellate court:

This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326.  In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir. 2012) (Rosales-Bruno I).  That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment.

On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment.  After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term.  That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment.  The sole issue in this appeal is whether that sentence is substantively unreasonable.

Chief Judge Carnes thereafter has a 50-page explanation for why he thinks the sentence is substantively reasonable.  In turn, Judge Wilson need 40 additional pages to provide a contrary view on the reasonableness of this sentence.  The dissent starts this way:

For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0–6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range.  The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary[] to comply with the purposes set forth” in 18 U.S.C. § 3553.  See United States v. Irey, 612 F.3d 1160, 1187, 1189 (11th Cir. 2010) (en banc). Therefore, I dissent.