Carty

Opinion by Judge RYMER; Concurrence by Chief Judge KOZINKSKI; Concurrence by Judge SILVERMAN.

We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). 1 Events overtook us, however, when the United States Supreme Court granted cer-tiorari in Claiborne v. United States and Rita v. United States. As the issues were similar to those in our appeals, we deferred submission pending the Court’s decisions.

The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge’s discretionary decision accords with the sentence the United States Sentencing Commission deems appropriate in the mine-run of cases. — U.S. -, 127 S.Ct. 2456 , 2465, *988 168 L.Ed.2d 203 (2007). Mario Claiborne’s case was mooted by his death, Claiborne v. United States, — U.S. -, 127 S.Ct. 2245 , 167 L.Ed.2d 1080 (2007) (per curiam), so the Court granted certiorari in Gall v. United States to address the question whether a sentence that amounts to a substantial variance from the Guidelines needs to be justified by…

In Gall v. United States, — U.S. -, 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007), the Supreme Court said, “When conducting [appellate review of the reasonableness of a sentence,] the court will, of course, take into account the extent of any variance from the Guidelines. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness, [citing Rita v. United States, 127 S.Ct. 2456 ].”

Despite this very plain statement that appellate courts may exercise case-by-case discretion about whether to apply a presumption of reasonableness when reviewing a Guidelines sentence, the majority adopts its own rule — “[W]e decline to adopt such a presumption in this circuit”— not just in this case, but in all cases in this circuit. I fail to see by what right the majority presumes to prohibit the discre *997 tionary application of a presumption of reasonableness in all cases, in light of the fact that the Supreme Court has specifically authorized it.

With all due respect, it does not matter that the majority thinks that a presumption of reasonableness on appeal carries too much “baggage,” as they put it. What matters is what…

I join Judge Rymer’s opinion with the understanding that it affirms Carty’s within-Guidelines sentence by invoking a presumption that within-Guidelines sentences are “reasonable.” Despite the opinion’s quixotic claim that it “decline[s] to embrace a presumption [of reasonableness],” maj. op. at 994, it’s clear that this is precisely what the opinion does. After disposing of Carty’s procedural objections, see id. at 994-96, the opinion devotes few words to the reasonableness of his sentence; it affirms because “we see nothing unusual about Carty’s circumstances to compel a lower sentence.” Id. at 996.

When a sentence is within the Guidelines range, we know that “both the sentencing judge and the Sentencing Commission ... have reached the same conclusion” that the sentence is “proper.” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2463 , 168 L.Ed.2d 203 (2007). We must presume that such a sentence is reasonable, and we can rest on this presumption unless we are shown something “unusual” that “compels]” a different conclusion. Maj. op. at 996. Judge Rymer does this here, so I’m pleased to join.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, STEPHEN REINHARDT, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, JAY S. BYBEE, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge RYMER; Concurrence by Chief Judge KOZINKSKI; Concurrence by Judge SILVERMAN.

RYMER, Circuit Judge:

We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). [1] Events overtook us, however, when the United States Supreme Court granted certiorari in Claiborne v. United States and Rita v. United States . As the issues were similar to those in our appeals, we deferred submission pending the Court's decisions.

The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge's discretionary decision accords with the sentence the United States Sentencing Commission deems appropriate in the mine-run of cases. ___ U.S. ___, 127 S.Ct. 2456 , 2465, 168 L.Ed.2d 203…