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05-10200, 05-30120 U.S. v. Carty
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.
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 (2005).¹. Carty and Zavala are consolidated for purposes of rehearing en banc.)) 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.
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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. 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007). Mario Claiborne’s case was mooted by his death, Claiborne v. United States, 551 U.S. ___, 127 S. Ct. 2245 (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 extraordinary circumstances. 127 S. Ct. 2933 (2007). It held on December 10, 2007 that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse-of-discretion standard. Gall, ___ U.S. ___, 128 S. Ct. 586, 591 (2007). On the same day, the Court held that, under Booker, the cocaine Guidelines, like all others, are advisory only and that the Guidelines, formerly mandatory, serve as one factor among several that district courts must consider in determining an appropriate sentence. Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558, 564 (2007).
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Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate “presumption” of reasonableness for sentences imposed within the Guidelines range. We decline to do so, although we recognize that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal. Applying Rita, Gall and Kimbrough, we conclude that there was no significant procedural error in either Carty or Zavala, and that the sentences imposed were not unreasonable. Accordingly, we affirm in each case.²
… U.S. v. Carty.

1. United States v. Carty, 462 F.3d 1066 (9th Cir. 2006) (ordering rehearing en banc in United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006), and United States v. Carty, 453 F.3d 1214 (9th Cir. 2006 [↩]
2. Carty also challenges his conviction, which we affirm for reasons stated in Parts I and II of the panel opinion, and the wording of the verdict form, as to which we see no abuse of discretion and affirm for reasons stated in Part III. Carty, 453 F.3d at 1217-18, vacated, 462 F.3d 1066 (9th Cir. 2006). [↩]