In his  White Collar Crime column in the New York Law Journal, Elkan Abramowitz provides the results of a study done by the New York Council of Defense Lawyers as to the reversal rate of post-Booker sentences for “reasonableness”.  He writes:

        The NYCDL surveyed all cases from Jan. 1, 2006 through Nov. 16, 2006 in which a circuit court of appeals engaged in a reasonableness review of a sentence. According to the NYCDL, this data demonstrates how the “unreasonableness review” has functioned in practice, “revealing how courts of appeals have applied Booker’s standard.” Of the 1,515 cases analyzed, approximately 10 percent of these cases involved sentences above the guidelines that were appealed by the defendants. More than 95 percent of those sentences were affirmed (only 7 cases were vacated). In contrast, approximately 85 percent of the below-guidelines sentences appealed by the government were vacated as unreasonable. Of the total 1,515 cases, only 4.7 percent of these were below-guidelines sentences appealed by the government, while 9 percent were below-guidelines sentences appealed by the defendant, none of which were found to be unreasonable. Finally, the remaining 1,152 cases were within-guidelines sentences appealed by defendants. Only 16, or approximately 14 percent, of these cases were vacated. However, all, but one, were vacated for procedural reasons. Therefore, only one within-guideline sentence appealed by a defendant was found to be substantively unreasonable.

To my fellow criminal defense lawyers out there, look hard at these numbers.  It’s too late to wonder about the seizmic changes Booker will bring to the federal sentencing.  The answer is in.  While individual District Court judges may have delighted in the idea that they are once again judges at the time of sentence, empowered to consider the real issues rather than merely announce the outcome of reading the sentencing guidelines grid as if they were the best paid clerk in the courtroom, the Circuit Courts of Appeal will not allow it.  Reasonable is whatever the grid says it is, and they will no more sanction downward departures now then they would before.

The most telling statistic is the reversal rate for upward departures versus downward.  The difference in the statistics is staggering.