The Third Circuit has carried its rule requiring remand of ambiguous departure rulings forward into the post-Booker world. The doctrine, originating in United States v. Mummert, 34 F.3d 201 (3d Cir. 1994), stemmed from the need to determine whether the appellate court had jurisdiction to hear an appeal challenging a Guidelines sentence--legal departure denials were reviewable while discretionary denials were not. Since sentencing courts must still rule on departure motions in the Third Circuit, and since reviewability of such rulings still turns on their legal or discretionary nature, Mummert continues to serve a purpose, the Court held in United States v. Jackson, No. 05-4091 (3d Cir. Nov. 9, 2006).
Unfortunately, Jackson continues the Court's trend of watering down Mummert. In this case, although the district court never addressed the departure motion at all, the Third Circuit infers that the "implicit denial" of the motion was discretionary, since it viewed the government's opposition to the motion below as appealing to the district court's discretion. That is a controversial conclusion, as the government below and on appeal argued that the facts presented by Mr. Jackson do not "rise to the level" needed for a departure---seemingly a legal argument.
Jackson likewise seems to confirm that the Third Circuit will approve very "bare bones" explanations of sentences by district courts. Here, the sentencing court cited Mr. Jackson's criminal history and expressly rejected one of his mitigation arguments in imposing a Guidelines sentence, but was silent as to many other mitigating factors presented as well as to the departure motion. That explanation was upheld as sufficient.
A rehearing petition is pending in Jackson, asking the Court, among other things, to establish a supervisory rule requiring express and clear departure rulings, and to require district courts, as part of the explanation of sentence, to state why they reject any non-frivolous sentencing arguments made by the parties.
UPDATE: Rehearing has been denied.