Tenth Circuit Notes Split re Continuing Availability of Guidelines-Based Departures after Booker

Per U.S. v. Sanchez-Juarez, --- F.3d ----, 2006 WL 1165967 (10th Cir. May 3, 2006):

After Booker, which excised § 3553(b)(1) from the Sentencing Reform Act, see Booker, 543 U.S. at 259,FN2 circuits are divided in regard to whether such Guidelines-based departures may still be granted or have become obsolete. Compare United States v. Vaughn, 433 F.3d 917, 923 (7th Cir.2006) (“[T]he concept of a discretionary departure-over which we previously had no jurisdiction-has been rendered obsolete in the post- Booker world.” (internal quotation omitted)), with United States v. McBride, 434 F.3d 470, 477 (6th Cir.2006) (“[W]e believe that Guideline departures are still a relevant consideration for determining the appropriate Guideline sentence. This Guideline sentence is then considered in the context of the [ § ] 3553(a) factors.”). This circuit has stated that “[w]e view a direct challenge to a district court's discretionary decision not to depart downward as a challenge to the district court's preliminary application of the guidelines (the first step under [ United States v.] Kristl [, 437 F.3d 1050 (10th Cir.2006) (per curiam) ] ), and this challenge ··· remains unreviewable.” Chavez-Diaz, 2006 WL 1000811, at *5.

However, the different positions on that issue have had no bearing on circuits' assessment of their post-Booker jurisdiction. This is because post-Booker sentences within the Guidelines range do not result simply from the district court's determination that no departure is warranted under 18 U.S.C. § 3553(b)(1) and USSG Ch. 5 Pt. K. Rather, after Booker, every sentence that a district court ultimately imposes must reflect its determination of what is reasonable in light of the same § 3553(a) factors, whether that sentence is within or outside the Guidelines range.

Accordingly, as five other circuits have concluded, unreasonable sentences, whether they fall within or outside the advisory Guidelines range, are “imposed in violation of law” and thus reviewable pursuant to § 3742(a)(1). In effect, then, the meaning of “in violation of law” in § 3742(a)“is ··· broadened for sentences imposed after Booker.” Chavez-Diaz, 2006 WL 1000811, at *5. We note, furthermore, that the Supreme Court in Booker expressly directed appellate courts to review all sentences for reasonableness.