In United States v. Johnson, the Fourth Circuit reiterated and expanded on its earlier holding in Green that, post-Booker, the sentencing range called for by the Sentencing Guidelines must considered presumptively reasonable. This is bad for any number of reasons. Just a couple off the top of my head:
(1) Reinforces the erroneous notion that the Guidelines are entitled to special weight rather than simply being one factor among many as 18 U.S.C. 3553(a) clearly provides;
(2) Creates the impression, probably accurate, that the Guidelines are a safe harbor for the district courts; in other words, sentences within the guideline range will be subject to less rigorous review on appeal;
(3) Makes the Guideline sentence the reference point for judging the reasonableness of any sentence outside the range; that is, the probability that a sentence will be judged "unreasonable" increases exponentially with the extent of its variance from the advisory guideline range; the Fourth Circuit is where big variances go to die.
The overall effect of Johnson is to ensure that the Guidelines remain the 800 lb. gorilla of federal sentencing. Indeed, it can be argued that Johnson re-elevates the Guidelines uncomfortably close to unconstitutionally mandatory status.
Johnson is especially disappointing because its analysis is so shallow. To give just one example, Johnson states that the Guidelines are presumptively reasonable because they encompass and incorporate all the other 3553(a) factors. This is simply not correct. It is closer to the truth to say they contemplate all the negative factors about a defendant's history and characteristics and none of his positive factors. Under the Guidelines, the only part of the defendant's past that counts is his criminal history. His employment record, military service, family ties, educational achievements, etc. all count for exactly nothing in calculating his Guideline range.
Fortunately, not all courts have downed the presumptive reasonableness Kool-Aid. Indeed, several have held that the Guidelines are not entitled to presumptive weight. There is a substantial circuit split brewing on this issue.
Accordingly, defendants in the Fourth Circuit should always object to a district court giving the advisory Guidelines presumptive weight. Acknowledge Johnson but preserve the issue just in case the Supreme Court decides to entry the fray.
National Sentencing Resource Counsel Amy Baron-Evans has written a fabulous paper, Antidote to the Kool-Aid, laying out the argument that the Guidelines are not presumptively reasonable. Beyond providing great ammo for a frontal attack on Johnson, Amy's paper has a lot of fantastic ideas about how to blunt and minimize its impact.
It is something every lawyer in the Fourth Circuit should take a look at.