US v. Guerrero-Velasquez, No. 05-30066 (1-19-06). This is a disturbing case, especially with a gratuitous footnote regarding the "reasonableness of a guideline sentence." First, this case came up on a gov't appeal. The defendant in a 1326 reentry case had a second degree Washington burglary. The gov't argued this triggered a 16 level enhancement. The court applied Taylor to find that second degree burglary was not a crime of violence under state law, and conducting a Shepard modified approach, concluded that the gov't failed to present sufficient evidence to prove that it was a crime of violence. Hell hath no fury like the gov't scorned, and so this appeal followed. The 9th chastised the district court for not considering defendant's signed plea agreement in the state court, where the factual basis had him admitting to entering a residence. The guilty plea admitted the facts in the information. Defendant tried to argue that it was an Alford plea, and that the defendant maintain innocence. The 9th said it didn't matter: an admission in a plea agreement trumps any maintenance of innocence. The sentence is vacated and remanded under Ameline.

This seems pretty straight-forward. Why, then, did the 9th (Bybee) drop a footnote with some dicta that could be misinterpreted. The note correctly states that the guidelines are "an important aid" for courts seeking an appropriate sentence and help "to maintain uniformity in sentencing throughout the country." It then follows, as Judge Bybee writes, that it is appropriate to consider whether the guidelines were correctly interpreted and applied. E.g. Cantrell. Judge Bybee then opines, without authority, that: "We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable." Whoa! That sentence is dicta as it is wholly unnecessary for the holding. See US v. Johnson, 256 F.3d 895 (9th Cir. 2001)(en banc)(discussions of what is and is not dicta). This comment has no bearing because: (a) the issue of reasonableness on review was not necessary for the holding or analysis because of Ameline; (b) the reasonableness of this sentence was not a future issue because of this sentence's vacation and because the guideline was erroneously miscalculated; and (c) the statement is wrong in light of US v. Cantrell, No. 03-30562 at 692-94 (1-13-06)(discussing review procedure and stating that guidelines but one 3553 factor). Cantrell emphasizes that a reasonableness review considers "the overall sentence in light of all the 18 USC 3553(a) factors, including the applicable Guideline range." (694). Cantrell's note 5 stresses that the reasonableness is in light of all the 3553 factors. There is no statement in Cantrell that a guideline sentence is presumptively reasonable; a first among equal 3553 factors. Again, Judge Bybee cites no case or authority for the ending note 1 sentence, nor does he engage in any analysis (see the approaches in Wilson and Ruman). A presumptive reasonableness standard comes awfully close to a presumptive guideline that tortures the meaning of Booker I.