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March 09, 2006


Peter G

I agree with you that Judge Howard's separate opinion, which he calls a "concurrence," should be labeled a dissent. He takes the position -- as the govt has been arguing unsuccessfully on a national basis -- that the court of appeals lacks jurisdiction even to review the reasonableness of a sentence that falls within the properly-calculated guideline range. (As the majority notes, the Supreme Court in Booker expressly stated the opposite, so the gov't's argument is untenable.) Since this sentence did fall within the range, Howard's opinion requires that he dissent from the majority's exercise of such jurisdiction, even to affirm. The real dissent is by Judge Lipez, who shows that the majority's "substantial weight" rule lacks a statutory basis, and that the district court therefore committed error in giving the guideline range such undue weight when imposing sentence.

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