In Nelson v. United States, __ S.Ct. __, 2009 WL 160585 (Jan. 26, 2009), the Court took the Fourth Circuit to task for affirming a within-guidelines sentence despite the judge’s statements at sentencing that “the Guidelines are considered presumptively reasonable” and that “unless there’s a good reason in the [3553(a)] factors . . ., the Guideline sentence is the reasonable sentence.” 

Key quote from the Supreme Court:
      The Guidelines are not only not mandatory on sentencing courts; they
      are also not to be presumed reasonable.  We think it plain from the
      comments of the sentencing judge that he did apply a presumption of
      reasonableness to Nelson’s Guidelines range.  Under our recent
      precedents, that constitutes error.

And, yes, the italics were in the original opinion.

Justices Breyer and Alito concurred in the judgment; they would simply have GVR’d the case given the fact that the Soliciter General conceded the statements constituted reversable error.  Once again, though, it looks like a majority of the Court has had it with appellate courts that refuse to embrace Booker, Rita, Gall, and Kimbrough.

You can use Nelson to remind your district court judges that the guidelines cannot be given any priority at sentencing, and use the Deconstructing the Guidelines resources on fd.org’s Sentencing Resource page to show why they ought not to be followed at all.

To read the opinion:

Nelson v. United States

David Finn