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A deepening split among federal circuit courts just got bigger in the quest to determine the appropriate standard to review criminal sentences for reasonableness. The 6th U.S. Circuit Court of Appeals, in a recent 9-6 en banc decision that included three separate dissents, held that defendants must object � at the time of sentencing � to any perceived procedural error that renders the sentence unreasonable. Failure to object will forfeit the defendant’s ability to do so later, except in the case of a plain error, a very high standard to meet. U.S. v. Vonner, 2008 WL 320773 (6th Cir.). Other circuits � including the D.C. Circuit in U.S. v. Bras, 483 F.3d 103 (2007), and the 4th Circuit in U.S. v. Curry, 461 F.3d 452 (2006) � have held that the reasonableness of a sentence is an appellate-review standard, not an objection that must be raised with the trial judge at the time of sentence. “Everyone is trying to figure out what they have to do now,” said Stephen Ross Johnson, an attorney representing defendant Alvin Vonner in Vonner. “They would probably have to object to the entire sentence and state on the record every ground for objection,” said Johnson of Ritchie, Dillard & Davies in Knoxville, Tenn. He said that, for nearly 60 years under long-standing procedural rules, lawyers have not been required to take exception to a trial judge’s rulings once a decision is made. Assistant U.S. Attorney Charles Atchley Jr. of Knoxville, Tenn., who represents the government in the case, did not return a call seeking comment. Although the U.S. Supreme Court has issued three pronouncements on the subject in the past year, appellate courts continue to take varied approaches to reasonableness reviews. The deepening divide “surely merits the attention of the Supreme Court,” suggested 6th Circuit Judge Karen Nelson Moore in her dissent. On appeal, the reasonableness of a sentence should include three tests: whether the trial judge evaluated sentencing factors properly; whether the judge imposed a sufficient, but not excessive, sentence; and whether the judge explained the reasons for the sentence sufficiently to allow for review, according to a dissent by 6th Circuit Judge Eric Clay.

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