Thompson was sentenced before the Booker decision, and her lawyer didn't argue that the guidelines violated her constitutional rights. Under a tough test adopted in the Eleventh Circuit, the court remedies the constitutional violation only (in the words of Judge Tjoflat) if "the district court has stated on the record that the guideline sentence is too high -- and by implication, unfair and unjust." Judge Tjoflat criticized a standard that forces the district judge "to tell the defendant all about the injustice being done to him so that the defendant can receive the benefit of any subsequent appellate decisions." If the judge thinks a sentence is unjust but doesn't voice that opinion (perhaps out of deference to the Sentencing Commission), the unjust sentence remains.

Tjoflat's critique generally was applauded by criminal defense attorneys. "This requirement of magic words is disturbing," said Stephen J. Bronis of Zuckerman Spaeder in Miami. "I never found it much of a relief to the folks I represented when the judge says, 'I regret having to do it, and it's unfair but, I'm going to have to impose some Draconian guideline sentence.'"

Fort Lauderdale lawyer and sentencing expert Benson B. Weintraub complained that "the 11th Circuit is completely out of sync with the rest of the country's courts of appeal. The Thompson decision underscores the rigidness of this court in extolling form over substance in the most critical of criminal cases.”

Law professor and sentencing expert Doug Berman observes that the Eleventh Circuit "seem to be trying their darnedest to make sure [that defendants who failed to make a constitutional challenge] do not get the benefit of the Booker decision." Prof. Berman has an extended excerpt from the concurring opinion, and a link to the entire opinion, here.