In US v. Edward Coleman (No. 05-1348 June 15, 2006) (click here to link) the 3rd Cir. rejected a challenge to the constitutionality of the Sentencing Commission as reconstituted under the PROTECT Act. The defense, following a district court opinion in US v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004), had argued that the PROTECT Act violated separation of powers by changing the structure of the Commission to allow the President to appoint all Commission members from within the Executive Branch, instead of requiring, as before the Act, that at least three members be federal judges. The Circuit ruled that regardless of the composition of the Commission, in light of US v. Booker, 543 U.S. 220 (2005), the guidelines are no longer mandatory and thus the guidelines do not control sentencing anyway: "[T]he guidelines' recommended range may be modified or disregarded by a district court upon consideration of the other sentencing factors Congress has identified in section 3553(a)."
Although the Circuit rejected the Detwiler argument in light of the now advisory guidelines, the Circuit's reasoning is particularly significant and helpful because it emphasizes that the guidelines must be treated as being truly advisory in order to avoid constitutional difficulties. Reiterating its ruling in US v. Cooper, 437 F.3d 324 (3d Cir. 2006), the Circuit explained that there is no "presumption of reasonableness" that "attaches to the Guidelines range." The Circuit then suggested that in other circuits, such as the 7th, that have adopted a presumption of reasonableness, the Detwiler argument might still have some force.