U.S. v. Smart, --- F.3d ----, 2008 WL 570804 (10th Cir. March 04, 2008)
In the 10th’s first big post-Gall and Kimbrough decision, over Judge Hartz’s dissent, the panel (Judge Lucero writing the opinion) upholds the district court's variance of 48 months below the advisory guidelines, resulting in a sentence of 120 months in a child porn case. The government appealed. The panel designates the government’s claim that the district court relied on legally erroneous sentencing factors as claims of both procedural and substantive unreasonableness (it is this that draws the bulk of the dissent). By putting the claims in the category of “substantive,” they are reviewed under the highly deferential abuse of discretion standard. Deference reigns, and U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir.2007), is overruled.
The case bears careful reading. The panel reads Kimbrough broadly as allowing the district court to disagree with guideline policy underlying any guideline, not just crack/powder disparity. The case does little to clear up confusion about the difference between procedural and substantive reasonableness, however, or how the appellate court will assess significant variances.