U.S. v. Autery, No. 07-30424 (2-13-09). This is an important sentencing "standard of review" case. The 9th holds that "abuse of discretion is the proper standard of review where a party challenges a sentence's substantive reasonableness on appeal but did not object to the sentence's reasonableness before the district court." (M. Smith joined by Thompson and Tashima concurring on the review standard) This case involved possession of child pornography. The guidelines were between 41-51 months, but the district court imposed a sentence of five years probation. The court carefully went through the 3553 factors, and explained at length why such a sentence was appropriate, and how it comported with the sentencing factors. On appeal, the 9th expounds upon the split in the circuits as to the proper standard of review when there has been no objection to the reasonableness of the sentence. The D.C., 7th and 10th Circuits use an abuse of discretion so as to avoid traps for the unwary or formulaic objections in every case. The 5th Circuit insists upon a plain error standard. The 9th goes with the majority, and specifically cites the reasoning in U.S. v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir. 2005). The abuse of discretion standard for reasonableness, with or without an objection, is distinguished from the need for an objection, or else plain error review, for procedural errors (such as failure to address the 3553 factors or Guideline error). See U.S. v. Knows His Gun, 438 F.3d 913 (9th Cir. 2005). The latter standard affords a court to correct its mistakes; the review of reasonableness does not require the same "correct mistake" rationale. The 9th (M. Smith and Thompson) goes on to find that this sentence was not an abuse of discretion. Dissenting, Tashima would find an abuse of discretion, and that sentence of probation, under these circumstances, was unreasonable. Tashima believes that the defendant here is a "run of the mill" child pornographer, and that the circumstances of such that a sentence of a 14 level departure leaves him was "a definite and firm conviction that the district court committed a clear error of judgment." Tashima fears an abdication of any review, and a too highly deferential approach to sentences.

This case provides guidance on standards of review for sentencing appeals. It also illustrates the need to make the record and consideration of the factors in imposing a sentence. If Tashima is right, and any sentence is bound to be upheld as reasonable absent procedural errors (Scalia's approach in Rita), then all is won or lost before the sentencing court. "Reasonableness review" under the abuse of discretion standard is a steep hill to climb for a sentence vacation and remand.

Musladin v. Lamarque, No. 03-16653 (2-12-09). This was the "wearing victim buttons" case that the Supremes reversed. Carey v. Musladin, 549 US 70 (2006). The 9th (Berzon joined by Reinhardt and Thompson) deal with the remaining issues, and affirm the denial of the petition. The 9th considers whether the trial court's answer to a jury note without consulting counsel was an error at a critical stage. The 9th holds that the court did err in responding, and that the response (to look at the instructions) was at a critical stage. However, under AEDPA, the state court's decision is given deference, and its application of Supreme Court precedence was not unreasonable. The 9th also found sufficient evidence of premeditation, no reversible error in hearsay, and no IAC.