Whether a district court can refuse to apply a sentencing guideline on policy grounds where the guideline is not based on the Sentencing Commission's characteristic institutional role

QUESTION PRESENTED In United States v. Booker, 543 U.S. 220 (2005), this Court held that the | Sentencing Guidelines were not mandatory. In Kimbrough v. United States, 552 U.S. 85 (2007), the Court held that, under United States v. Booker, it is not an abuse of discretion . for a district court to reject application of a guideline based on policy disagreements with that guideline. In Gall v. United States, 552 U.S. 38 (2007), this Court rejected a presumption of reasonableness for guideline sentences. ‘This Court’s precedent establishes, however, that a district court is not free to | ignore the Sentencing Guidelines, and that the advisory guideline range serves as a starting point and initial benchmark, in order to achieve consistency. Gad/ v. United States, 552 U.S. 38, 49 (2007); Freeman v. United States, 131 S. Ct. 2685, 2692 (2011). The failure to correctly calculate the guideline range is reversible error. See Gal/, 552 USS. at 51. While not every guideline is the product of careful study, zd. at 46 n.2, Kimbrough v. United States, 552 U.S. 85, 96 (2007), even when a guideline is unsound, it still “must [be] treat[ed] ... as the ‘starting point and the initial benchmark.’ ” 552 U.S. at 108 (quoting Gall, 552 U.S. at 49). Moreover, once a court correctly calculates the Guidelines range and sentences the defendant within that range, the sentence may be ptesumed reasonable. Reta v. United States, 551 U.S. 338, 351 (2007). ‘This case presents two questions stemming logically from Booker, Kimbrough and Gall: 1. In the post-Booker world of non-mandatory guidelines, is it an abuse of discretion to refuse to reject a guideline on policy grounds where the guideline is manifestly not based on the United States Sentencing | Commission’s exercise of its characteristic institutional role, but is instead | based on political concerns; and . 2. Is U.S.S.G. §2G2.1, as applicable to the production of child pornography, a | guideline not based on the Sentencing Commission’s exercise of its } characteristic institutional role? |