Whitehead

Dissent by Judge GOULD; Dissent by Judge REINHARDT.

ORDER

join dissenting from the denial of rehearing en banc:

A majority of eligible judges has voted against rehearing en banc. The petition for rehearing and rehearing en banc is denied. Fed. R.App. P. 35, 40.

I respectfully dissent from the denial of rehearing en banc in this case.

The problem is simply that the desirable principle of deference to the sentencing judge, if taken too far, is transformed into an undesirable principle of no review in effect for substantive reasonableness of a sentence, contrary to what the Supreme Court declared as law. I believe that while Gall v. United States, — U.S. -, 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007) reinforced district judges’ considerable discretion in sentencing, it left appellate judges with the task of reviewing sentences for reasonableness, and that review must be more than the mere recitation that the district court knows the facts better than we do, with a citation to Gall. See United States v. Whitehead, 532 F.3d 991, 993 (9th Cir.2008).

The scope of our duty to review a district court’s sentencing decision for substantive reasonableness under an abuse of discretion…

dissenting from the denial of rehearing en banc:

We should have taken this case en banc for the reasons set forth in Section II.A of Judge Bybee’s dissent. United States v. Whitehead, 532 F.3d 991, 994-96 (9th Cir.2008). Although, in my view, the result reached in Whitehead was not necessarily erroneous, the cursory nature of the review in which the majority engaged surely was. The majority’s superficial opinion reflects a fundamental misunderstanding of our responsibility as appellate judges to conduct a serious examination of the sentencing decisions of district courts and to reverse those sentences if they do not *922 meet the standard of “substantive reasonableness.” Gall v. United States, 552 U.S. 38 , 128 S.Ct. 586, 597 , 169 L.Ed.2d 445 (2007).

I regret that Judge Gould has chosen to limit his complaint to the sentencing of white collar criminals and that he emphasizes a need for an increase in the length of sentences, if only in their case. The problem with our sentencing policies these days is quite the opposite: the sentences we impose are far too harsh. Those harsh penalties fall all too often on the “poor and powerless.” Dissent from Denial of Rehearing at 3180. Some…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50458 Plaintiff-Appellant, D.C. No. v.  CR-03-00053-

THOMAS MICHAEL WHITEHEAD, CAS-

Defendant-Appellee. 

UNITED STATES OF AMERICA,  No. 05-50506 Plaintiff-Appellee, D.C. No. v.  CR-03-00053-

THOMAS MICHAEL WHITEHEAD, CAS-

Defendant-Appellant.  ORDER

Filed March 11, 2009

Before: Alex Kozinski, Chief Judge, Diarmuid F. O’Scannlain and Jay S. Bybee, Circuit Judges.

Order; Dissent by Judge Gould; Dissent by Judge Reinhardt

ORDER

A majority of eligible judges has voted against rehearing en banc. The petition for rehearing and rehearing en banc is denied. Fed. R. App. P. 35, 40.

3125 3126 UNITED STATES v. WHITEHEAD GOULD, Circuit Judge with whom KLEINFELD, BYBEE, CALLAHAN, and BEA Circuit Judges, join dissenting from the denial of rehearing en banc:

I respectfully dissent from the denial of rehearing en banc in this case.

The problem is simply that the desirable principle of defer- ence to the sentencing…