United States v. 2006-08-25 | 05-10200 | USA VCARTY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-10200
v.  D.C. No.
CR-03-01135-RGS ALPHONSO KINZAR CARTY,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 05-30120
Plaintiff-Appellee, D.C. No.
v. CR-02-00079-12-  BLWJUAN ANTONIO ZAVALA,
Defendant-Appellant. ORDER

Filed August 25, 2006
Before: Mary M. Schroeder, Chief Circuit Judge.
ORDER
The court invites supplemental briefs by the parties
addressing some or all of the following questions on the role
of the United States Sentencing Guidelines in a district court’s
sentencing decision after United States v. Booker, 543 U.S.
220 (2005):
1. Do we have jurisdiction to review appeals of
within-Guidelines range sentences?
2. If we have jurisdiction to review within-
Guidelines range sentences, are such sentences
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entitled to a presumption of reasonableness, or
should we review such sentences no differently
than we review outside-Guidelines range sen-
tences? If within-Guidelines range sentences are
entitled to a presumption of reasonableness, is
this presumption conclusive? Rebuttable? If
rebuttable, how can such a presumption be
rebutted?
3. How should we review a post-Booker sentence
for reasonableness? Do we review only whether
the district court complied with Booker’s man-
date to consider the 18 U.S.C. § 3553(a) factors?
If so, is this review de novo? Do we indepen-
dently review the sentence imposed for reason-
ableness? If so, how do we determine whether a
sentence is reasonable? What legal and factual
matters, if any, must we consider? Is this review
for abuse of discretion? Are factual findings
decided by the district court reviewed for clear
error, abuse of discretion, or on some other stan-
dard of review? Does it matter whether the find-
ings are pertinent to the calculation of the
advisory Guidelines range or pertinent to the
application of the other 18 U.S.C. § 3553(a) fac-
tors?
4. What procedure is a district court required to
follow in sentencing a defendant within the
advisory Guidelines range? In particular, what
should be the district court’s duty, if any, to
articulate its consideration of the section 18
U.S.C. § 3553(a) factors?
5. If distinct from the procedure for within-
Guidelines range sentences, what procedure is a
district court required to follow in sentencing a
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defendant above or below the advisory Guide-
lines range?
6. What weight does the advisory Guidelines range
have, in relation to other 18 U.S.C. § 3553(a)
factors? In conducting a sentencing proceeding,
may a district judge announce that he will
impose a sentence within the advisory Guide-
lines range unless the parties present compelling
reasons for imposing a sentence outside of that
range? On review, should we determine whether
the district court has given the advisory Guide-
lines range the appropriate weight, and if so,
how?
Briefs responding to this order shall be filed no later than
September 15, 2006. Any person or entity wishing to file a
brief as an amicus curiae in response to this order is granted
leave to do so pursuant to Fed. R. App. P. 29(a).
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West.

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