dissenting:

I respectfully dissent. The new sentencing regime does not justify this abdication of our duty of review. The majority’s application of review for abuse of discretion equates it with no review.

For many years, Menyweather worked in administration for the United States Attorney’s office in Los Angeles. During this period, she used her government credit card and other peoples’s cards for almost three years to steal over $435,000— that the government has been able to verify — and faked certifications and computer entries to cover up her thefts. Yet she has not been sent to prison.

Menyweather went to work for the United States Attorney in 1990 as a clerical employee, so she was a long trusted member of the office when she got promoted to procurement in 1997. Almost immediate *703 ly, she began stealing, mostly by using the procurement' credit cards to buy such things for herself as clothes, gift certificates, appliances, cellular phones and service, car repairs, insurance, and even computers. She sold some of what she stole, including $12,500 worth of computer equipment. She also took trips to Alaska, Australia, and Israel, as well as Palm Desert, Dallas, Columbus, Birmingham, Houston, and Monroe, Louisiana, all on stolen money. Menyweather planned a week long cruise in the Carribean, bought with stolen money, but the government was able to stop payment on it when she was caught.

In addition to stealing for herself, Meny-weather used stolen money to dramatize herself as a Lady Bountiful. She bought her sister-in-law in Tacoma a computer, printer, monitor and software. And she bought a dozen computers for the needy. About $20,000 of the stolen money was contributed to charitable organizations. She took numerous children to Las Vegas, twice, and to a church conference in New Mexico, all on the government nickel. She took eight people to a church conference in Atlanta. She even bought eight plane tickets to Israel. Her and her friends’s and beneficiaries’s travel cost the government about $150,000. And she showered her friends and relatives with such gifts as lawnmowers, computers, cell phones and service, video games, and televisions. Nordstrom’s alone got $53,800 of Meny-weather’s bounty.' The government found over a thousand crooked transactions when her thievery was finally discovered.

The government caught up to her and managed to stop payments on some of the more recent transactions after she had stolen $419,521. This left a travel agency stuck for $16,397. A lady at the travel agency, Ms. Kenichi Kimura,- who had thought she was dealing with the government — a reasonable assumption since she was selling travel to a United States Attorney’s procurement agent on a government credit card — wrote a victim impact statement explaining that she was required to pay back the- loss to her company with monthly deductions from her salary, amounting to a fifteen to twenty percent pay cut that she could not afford. The violation of trust had driven her to seek counseling. She wrote, “[t]o me, working for the Government itself is the steady, fair and irresistible reason to believe. Maybe, I am Japanese and don’t know much about the America. What else can people, including American believe if they can’t believe the Government.”

Menyweather had suffered two severe misfortunes in her life. When she was a child, her father deserted her family and her mother gave her to her grandparents to raise. , When she was a young adult, the year before she went to. work for the United States Attorney (eight years before the crimes), her fiancee was shot dead when she was five months pregnant with his child. She had been visiting friends nearby, and found his body as he lay bleeding to death..

Based on three and a half hours of interviews and tests, discussions, with Meny-weather’s lawyer, and examination of discovery materials and letters from relatives, a psychologist, Barbara - Counter, Ph.D., told the court that in her opinion, Meny-weather’s thefts were caused by post-traumatic stress from these misfortunes. She was, Dr. Counter opined, “filling the social and emotional voids created by her unacknowledged and untreated retraumatization, depression and despair with whatever external objects she could collect. She self-medicated” with shopping and trips. However, Dr. Counter had never seen Menyweather before Menyweather’s lawyer brought her in. Dr. Counter conceded that meeting Menyweather after she got *704 fired and arrested made it impossible to distinguish the claimed post-traumatic emotional disorder resulting from the traumas years before from the effects of the trauma of a federal felony prosecution.

The presentence report for Menyweather’s 2001 sentencing recommended a guideline range of 21 to 27 months, $16,397 restitution to Ms. Kimura, the travel agent, and $419,521 restitution to the U.S. Attorney’s office. The defense urged a downward departure to twelve months in custody (two over the summer, the rest on weekends) because of Menyweather’s psychological condition as described by Dr. Counter and because Menyweather was solely responsible for her eleven year old daughter. The government opposed the departure, pointing out that the trauma of her fiancee’s murder preceded the beginning of her thefts by almost eight years and, in between, she had completed college, completed a successful internship, won awards, and generally done very well. The government also pointed out that U.S.S.G. § 5H1.6 generally made family responsibilities an irrelevant consideration for departure.

Moreover, the government highlighted the fact that there is nothing extraordinary about being a single mother and that Men-yweather had chosen to leave her daughter without her supervision when she went on ten trips to Alaska, Australia, Israel, and numerous other destinations during her travels on- stolen money. She had not even bought a ticket for her daughter (though she had for numerous other people) for the planned Carribean cruise that the government discovered and stopped.

The district judge, without explanation, departed downward eight levels. He gave Menyweather an even more lenient sentence than her attorney had asked for. The district court put Menyweather on probation for five years with conditions of restitution, community service and 40 days of jail to be served on weekends. The judge did nothing to see that the travel agent got paid back before the government.

We vacated and remanded for resen-tencing, because the court had not provided reasons for the downward departure and had failed to order that the travel agent be paid her restitution first, pursuant to 18 U.S.C. § 3664a). 1

On remand, the government moved for leave to have its own psychiatrist evaluate Menyweather and for time to do an independent investigation of child care resources for Menyweather’s daughter if Menyweather was sent to prison. The district court denied the motions. At the sentencing hearing, the judge would not allow the prosecution to show that all of the letters Dr. Counter relied on were from relatives upon whom Menyweather had showered her stolen largesse. The judge then imposed the same sentence he had the first time. The only change was that this time he explained why he was departing. He listed several “justifications”: Menyweather “is a single mother;” her thirteen year old daughter was entirely dependent on her; Menyweather and her daughter lived in a gated apartment community and her daughter attended private school, but if she were imprisoned her daughter would live in an unsafe neighborhood with her great aunt and grandmother; Menyweather had been traumatized, as Dr. Counter had said, yet had never received psychiatric care; and, finally, “post-conviction rehabilitation.”

*705 We reversed and remanded again. We noted that “post-conviction rehabilitation” might be a prohibited basis for departure under U.S.S.G. § 5K2.19, 2 and, without giving the government an opportunity to address this issue, the judge had handwritten it into his justification for departure after the sentencing hearing. We also noted that the judge had not given any justification for why the departure should be eight levels (which brought the bottom of the guideline range to zero months).

In the district court again after this second remand, the government once more sought an opportunity to have its own psychiatrist evaluate the post-traumatic, self-medication explanation for Meny-weather’s crimes, and to investigate Meny-weather’s ability to provide for suitable child care among her extended family in the Los Angeles area if she was imprisoned. The government also sought an opportunity to investigate and contest the “post-sentencing rehabilitation” issue. Again, the judge denied the motions. By this time the daughter was 14 years old. The judge told the prosecutor “No second bites at the apple, counsel,” even though our mandate vacating the sentence in effect required a second bite. The judge then reimposed the same sentence saying, “there’s nothing that’s changed in the matters in which I am departing.” The only additional justification was the judge’s signature on findings defense counsel submitted to protect the sentence from further appeal. In it he adopted the post-traumatic stress theory, compared the gated community and private school with the bad neighborhood, and justified the eight level departure by the “combination of circumstances under 5K2.0” showing “diminished capacity, extraordinary mental and emotional condition and extraordinary family circumstances.” The findings submitted by defense counsel omitted the “post-conviction rehabilitation” reason that we rejected previously.

Faced with the district judge’s obdurate refusal to comply in any serious way with our mandates, we have given up. United States v. Booker 3 gives us our excuse, but it is no more than an excuse, because a serious reading of the facts and the law of sentencing still requires that this sentence be vacated.

United States v. Booker “excised” the statutory provisions making the sentencing guidelines mandatory and providing for de novo review of departures, but held that “the remainder of the Act” imposing the guidelines is constitutional. 4 The Act “requires judges to take account of the guidelines together with other sentencing goals. See 18 U.S.C. § 3553 (a) (Supp.2004).” 5 “And the Act nonetheless requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care.” 6 Sentences are still to be reviewed by the Courts of Appeal, and review is to be for “unreasonableness” with respect to these statutory goals of *706 sentencing. 7 A serious look at the legal criteria for sentencing requires that the sentence imposed be deemed unreasonable.

Does 40 days to serve on weekends “reflect the seriousness of the offense” of a trusted employee engaging in a long running and elaborate scheme and coverup in which she stole over $435,000? Obviously not. Impulsive shoplifters with a record can get a lot more time than that, 8 and Congress regards stealing more than $1000 in public money as a felony with a 10 year maximum sentence. 9 Does 40 days to serve for tins crime “promote respect for the law”? It makes a joke of the law. Does the sentence “effectively provide the defendant with needed educational or vocational training and medical care”? The only person who got counseling after the crime was the disillusioned travel agent. The court did not require Menyweather to undergo any kind of treatment for the “post-traumatic stress” that the court used as a justification in giving her this lenient sentence.

Does the sentence “afford adequate deterrence”? Far from deterring crime, the sentence invites it. $435,000 is a substantial amount- of money, a life-changing amount of money for most people. Many people would eagerly volunteer to spend 40 days in jail on weekends to become that rich. They would earn almost $11,000 per night. A lot of jails count any portion of a day as a day, so a person can “serve two days” by arriving at 11:30 Friday night, leaving enough time for booking before midnight, and check out just after midnight to go home to sleep. “Protect the public”? There is nothing in the record to suggest that Menyweather will not steal again, if given the opportunity. Even the one member of the public personally and individually suffering from the crime, the travel agent, was not protected until we ordered the district judge to insure that she got her restitution first.

What about the sentencing guidelines? After Booker, they are not dead, just “advisory” instead of mandatory. The guidelines are contrary to the sentence imposed. That is why the judge departed from them. Review for unreasonableness is still review. We may not properly defer to an unreasonable sentencing decision. Unless and until Congress returns sentencing to what it used to be before the guidelines, a totally unreviewable discretionary trial court decision, we are supposed to assure that sentences are reasonable.

The primary justification for the strikingly lenient sentence was the post-traumatic self-medication by shopping theory that Dr. Counter articulated. Under the guidelines manual the district court used for sentencing, “mental and emotional conditions are not ordinarily relevant” to departures 10 where the defendant does not suffer from “significantly reduced mental capacity,” 11 though a mental or emotional condition may justify departure if present to such an “unusual degree” to distinguish the case from “ ‘heartland’ cases.” 12 Because Menyweather’s sentence flies in the face of all the other sentencing considerations the statute imposes, it can be justi- *707 fled on this ground only if the ground is strong indeed. It is not.

First, the departure suffers from the same defect that led us to vacate the sentence because of the- “post-conviction rehabilitation” justification the district court had previously mentioned, that the district court never gave the government a fair chance to oppose it. The court refused to allow the government to have its own psychiatrist evaluate Menyweather (because the judge repeatedly refused to allow the government to obtain its own psychiatric examination, I am non-plussed by the majority opinion’s attack on the government for failing to “offer any expert psychological testimony of its own.”). Second, the evidence for Dr. Counter’s opinion was little more than speculation about how the defendant must have felt considering that her father had abandoned the family when she was little and her fiancee had been murdered. Menyweather never got psychiatric treatment for her traumas. Dr. Counter saw her for at most 3-1/2 hours; at a time when Menyweather had just been traumatized by getting fired and arrested, so that most recent trauma doubtless affected her emotionally when Dr. Counter evaluated her. The only individual who needed and obtained counseling, so far as the record shows, was Menyweather’s victim, the travel agent, whose mental (and financial) condition the district court and prosecutor ignored. Third, Meny-weather’s educational and vocational success subsequent to the traumas — a college degree and considerable vocational success for eight years — was inconsistent with the theory that she was too disabled to function normally by these traumas.

The other rationale for letting Meny-weather go with 40 days of weekend time was that she was a single mother whose child would live with relatives in a bad neighborhood, instead of the gated community and private school Menyweather provided, if Menyweather went to prison. It is hard to see how Menyweather could continue to provide this superior standard of living after getting fired for stealing. The district judge repeatedly denied the government’s motion to investigate the child care situation, thereby preventing the record from being further- developed. The guidelines advise that “family ties and responsibilities” are not ordinarily relevant to departures, 13 though like mental health they can be in extraordinary cases. 14 We, 15 like other circuits, 16 have held that family circumstances should ordinarily be considered only when extraordinary harm to family dependents exceeds the normal disruption caused by imprisonment. But there is nothing “extraordinary” or “unusual” -as those terms are used in the sentencing guidelines about single mothers. Nor is there anything extraordinary or the slightest bit unusual about a criminal’s family suffering from loss of companionship and lowered income when the criminal is caught and sent to prison. Indeed, peoples’s concern about avoiding this *708 harm to their families is among the most important deterrents to crime.

Nor is it clear that Menyweather’s influence on her daughter is superior to the moral training her nearby relatives would provide, because, though poorer, they have not stolen $435,000. Being richer is not the same thing as being better. Since Menyweather has traveled all over the world without taking her daughter along, leaving her instead in the care of others, the record does not support a determination that she cannot travel for a time to prison without taking her daughter along. There are a lot of single mothers. No class of persons can be immunized from imprisonment without assisting recruitment for criminal enterprises by providing an incarceration-proof labor force.

That leaves us with the last and most important of the statutory criteria emphasized by Booker, whether the 40 days to be served on weekends “provide[s] just punishment.” 17 Where is the justice in Meny-weather avoiding prison and getting 40 days to serve on weekends for stealing $435,000, when others steal a VCR and face 25-years to life in prison? 18 Does drawing a district judge whose sentencing philosophy is idiosyncratic make so idiosyncratic a sentence “just”? An excessively lenient sentence like this causes cynicism, not only among people in prison, where the luck-of-the-draw sentencing interferes with rehabilitation, but among the law-abiding public. People have second thoughts about doing the right thing when those who do the wrong thing prosper and avoid punishment. 19 Injustice is corrosive.

Some people think defendants who have themselves suffered misfortunes should not go to prison, or defendants who commit nonviolent crimes, or women, or mothers, or single mothers. But none of these theories has been adopted by Congress or by the sentencing guidelines. I am able to explain, really explain, what the district judge has insisted on doing in the face of repeated remands only on the basis of some rejected theory such as this.

Some judges, such as the district judge in this case, 20 are known for strongly held views. And there was strong resistance among some district judges, particularly those with long pre-guidelines experience, to the restrictions on their sentencing discretion when the guidelines came into force eighteen years ago. Now that the guidelines have been reduced from mandatory to advisory status, our review authority may be more rather than less important than it was before, to prevent idiosyneracy from altogether overtaking sentencing consistency. A sentence like the one in this case is just the sort of red flag that makes legislators wonder whether the courts need mandatory minimum sentences to assure protection of the public. The sentence in this case, imposed the third time *709 after two remands, should be vacated again and the district court should be instructed to assign the case to another judge. 21

. 18 U.S.C. § 3664 (1) (“In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution.").

.U.S.S.G. § 5K2.19 (“Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense.”).

. United. States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

. Id. at 764.

. Id. at 744.

.Id. at 764-65.

. Id. at 765-66.

. Lockyer v. Andrade. 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003) (upholding a 25 year to life sentence under California three strikes law when the third offense was shoplifting items worth less than $100).

. U.S.S.G. § 5H1.3 (2000).

. U.S.S.G. § 5K2.13 (2000).

. U.S.S.G. § 5K2.0 (2000); United States v. Cantu, 12 F.3d 1506 (9th Cir.1993).

. 18 U.S.C. § 641 .

. U.S.S.G. § 5H1.6 (2000).

. U.S.S.G. § 5K2.0, cmt.

. United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir. 1991), overruled on other grounds in United States v. Aguirre, 214 F.3d 1122 (9th Cir.2000).

. United States v. Chestna, 962 F.2d 103 (1st Cir. 1992) (the fact that defendant was single and had four small children was not “an unusual family circumstance.”); United States v. Mogel, 956 F.2d 1555 (11th Cir.1992) (single mother of two minor children was not entitled to a downward departure for extraordinary family circumstances); United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (“the imprisonment of a single parent was not extraordinary,” even where the woman had five minor children).

. United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738, 744 , 160 L.Ed.2d 621 (2005).

. Ramirez v. R.A. Castro, 365 F.3d 755 (9th Cir.2004); See, also, Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003) (upholding a 25 year to life sentence under California three strikes law when the third offense was shoplifting items worth less than $100).

. Cf. Jeremiah 12:1-2.

.See, e.g., United States v. Sears, Roebuck & Company, Inc., 785 F.2d 777 (9th Cir.1986) (remanding case to a new judge after the judge repeatedly dismissed an indictment even after the case was remanded to him by the Court of Appeals with direction that the indictment be reinstated); United National Insurance v. R & D Latex Corp., 141 F.3d 916 (9th Cir.1998) (remanding to a different judge after the judge twice granted summary judgment without articulating reasons); cf. In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir.2005).

. U.S. v. Atondo-Santos, 385 F.3d 1199 (9th Cir.2004) (remanding with instruction that the case be assigned to a different judge, pursuant to the Court’s supervisory power under 28 U.S.C. § 2106 , after two remands and stating, "[i]n light of the history of this case and our previous remands, it is clear that the district court would have substantial difficulty in putting out of its mind its repeated, previously-expressed views that a 66 month sentence is appropriate in this case.”).