A Below-Guideline Sentence Unreasonable in Sixth Circuit: At Sentencing Law and Policy, Doug Berman reports a split Sixth Circuit panel reversed "a sentence well below the guidelines as substantively unreasonable." The opinion, U.S. v. Funk, No. 05-3708, was released today. Berman comments: "There is a lot of Funky spunk in both the majority opinion's effort to make sense of reasonableness review," and notes that "reasonableness review" is "challenging." Berman points to Judge Bogg's dissent as an example as to why reasonableness review after Rita, Kimbrough, and Gall, is difficult for appellate courts to implement. Berman comments that given the split, the case may be ripe for en banc review. This means more review for a case that has been around since Funk's 2002 federal indictment for conspiring to possess cocaine and marijuana with intent to distribute.

Louisiana v. Kennedy's Petition for Rehearing: At Bench Memos, Ed Whalen highlights three aspects of the Petition for Rehearing filed by Louisiana yesterday. First, Louisiana retained Georgetown law professor Neal Kumar Katyal as lead counsel for the Petition. Katyal, has said on the record that he agreed to help Louisiana with the opinion "[s]ince the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case" and "I am...opposed to courts taking fundamental decisions away from American voters…. " Second, the rehearing petition correctly states that while Louisiana erred in omitting the federal law, "Louisiana’s mistake 'should neither inhibit the Court’s work nor diminish its fealty to the Constitution.'" And finally, "the rehearing petition documents that the change effected by the 2006 law was “deliberate and premeditated,” was supported by a Department of Defense report that, among other things, discussed Louisiana’s child-rape law, was highlighted to Congress, and was implemented by an executive order and by amendments to the rules governing courts-martial."