Almost Mandatory is Advisory?

United States v. Covington, 2008 WL 2736753 (10th Cir. 2008)

This case’s lesson: if the district court says it understands that the guidelines are no longer mandatory, but also says but they are practically mandatory and it really has no choice but to impose the GL sentence, and does, the court has exercised its discretion. Here is the cut and paste of what the district court said:

"[A court is] bound by the laws that the Government passes. What laws Congress passes, I have to follow. If I don't follow them, then the Government could appeal and I would be reversed and we would have wasted everybody's time, so I have to follow them, too. When the Sentencing Guidelines were mandatory, we had absolutely no choice except to follow those prior to a year or two ago when they said they were advisory, but they are still given great weight and we are still bound to basically follow them, except in very unusual circumstances, or we just get reversed and [Mr. Covington] will be back where [he was], no matter what I did."

Seems to me this is prime fodder for a petition for certiorari.