United States v. Hasan, Docket No. 08-4921-cr , 2009 WL 3737521(2d Cir. Nov. 10, 2009) (found here) In Hasan, the Second Circuit takes on the job of more clearly explaining what it means by "abuse of discretion" review in the sentencing context. Here's what the court has to say: Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court has broad latitude to “impose either a Guidelines sentence or a non-Guidelines sentence.” United States v. Sanchez, 517 F.3d 651, 660 (2d Cir. 2008); see also United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Accordingly, the role of the Court of Appeals is limited to
examining a sentence for reasonableness, which is akin to review under
an “abuse-of-discretion” standard. See Cavera, 550 F.3d at 190;
see also Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)
(holding that “courts of appeals must review all sentences-whether
inside, just outside, or significantly outside the Guidelines
range-under a deferential abuse-of-discretion standard”); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (“A district
court has abused its discretion if it based its ruling on an erroneous
view of the law or on a clearly erroneous assessment of the evidence,
or rendered a decision that cannot be located within the range of
permissible decisions.” (internal alteration, citations, and quotation
marks omitted)). This standard applies “both to the [substantive
reasonableness of the] sentence itself and to the procedures employed
in arriving at the sentence.”
United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.2008) internal quotation marks omitted). When a defendant challenges the district court's
interpretation of a Guidelines provision, we review this
interpretation of the Guidelines-just as we would review the
interpretation of any law-
de novo. See, e.g., United States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009) (“In general, we review a district court's determination that a defendant deserves a[n] ... enhancement ...
de novo.... ”).
De novo review of the interpretation of a Guidelines provision does not exceed the narrow appellate review prescribed by Gall. 128 S.Ct. at 591. Rather,
de novo review of the law is adequately captured in the deferential “abuse-of-discretion” standard that
Gall requires.
Id. As the oft-cited case Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008), notes, “[a] district court has abused its discretion if it
based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence or rendered a decision that cannot
be located within the range of permissible decisions.” (internal
alteration, citations, and quotation marks omitted) (emphasis added).
Put differently, a district court necessarily “abuses its discretion”
if it makes an error of law. In this way, review for “abuse of
discretion” and de novo review are not entirely distinct concepts, but rather, review for abuse of discretion incorporates, among other things,
de novo review district court of rulings of law.
See, e.g., United States v. Legros, 529 F.3d 470, 473 (2d Cir. 2008) (“The abuse-of-discretion standard incorporates
de novo review of questions of law (including interpretation of the Guidelines) and clear-error review of questions of fact.”). Further
complicating and confusing the discussion of standards of review is
that “abuse of discretion” is a misnomer in the review of a district
court's rulings on matters of law. The interpretation of Guidelines
provisions-or any law-is not “discretionary” in the ordinary sense of
the word, see Webster's Third New International Dictionary 647 (1976)
(defining “discretion” as “power of free decision or choice within
certain legal bounds”), because, when there is a settled interpretation
of a given law, judges do not exercise their “discretion” on whether or
how to interpret or apply the law. Instead, they attempt in good faith
to apply relevant precedential interpretations of that law.
Nevertheless, the phrase “abuse of discretion”-a phrase that has been a
source of some confusion and more than occasional (and understandable)
irritation to district judges-has an expansive definition in the
federal courts. See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 n. 4 (2d Cir. 2001). This definition sweeps sufficiently far to define district court
rulings that are based on erroneous conclusions of law as “abuses of
discretion.” See, e.g., Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Sims, 534 F.3d at 132; Zervos, 252 F.3d at 169. Understanding that appellate courts
apply the term “abuse of discretion” to the overall review of a
district court's implementation of a sentence and that the use of the
term does not imply discretion on the part of the district judge in
deciding a matter of law, we review the District Court's interpretation
of the Guidelines here de novo. See Belot v. Burge, 490 F.3d 201, 206-07 (2d Cir. 2007); see also Zervos, 252 F.3d at 167-69 (explaining the differences among
de novo, clear-error, and abuse-of-discretion review).
Are we all clear on that now?
United States v. Byors, Docket No. 08-4811-cr (2d Cir. Oct. 29, 2009) (found here) On appeal, Byors argued that the district court erred in: (1) not offsetting the loss attributable to his fraud by amounts that represented legitimate investment in his business; and (2) applying a two-level enhancement for obstruction of justice relating to an offense underling his money laundering offense but not the money laundering offense itself (an issue of first impression in the Second Circuit). With regard to the first issue, the Second Circuit found that the "plain language of Application Note 3(E) [of Section 2B1.1] readily disposes of defendant's argument." Specifically, the "Guidelines do not require a loss to be offset by any legitimate expenditures . . . but rather [only] by 'value' that has been conferred on victims in the form of money or property returned or services rendered" (emphasis in original). With regard to the second issue, the Second Circuit found that the issue revolved around the question of what to do "where a defendant has obstructed the investigation or prosecution of an underlying offense but has not obstructed the investigation or prosecution of a subsequent money laundering offense." The Second Circuit solved that riddle by closely reading Sections 3C1.1 and 2S1.1 together, leading it to conclude that the defendant's obstructive conduct related not only to the offense of conviction, but also to relevant conduct or at least an offense that was closely related to the money laundering offense.
United States v. Jiang, No. 09-CR-34, 2009 WL 3254434 (E.D.N.Y. Oct. 9, 2009) Quick note: Jiang was convicted of fraudulently importing and trafficking in certain counterfeit goods, for which he faced an advisory Guidelines range of imprisonment of bewteen 78 and 87 months. The district court, however, sentenced him to 30 months imprisonment. It initially noted that the "offenses are serious" because they "destroy American commerce." But it nevertheless imposed a non-Guidelines sentence because "he
does have some physical and mental conditions which are subject to
pharmaceutical and other treatments. The defendant has a strong work
history and many friends and supporters in the community. He has a
supportive family and provides for his wife and two teenage children."
United States v. Rigas, Docket Nos. 08-3485-cr (L), 08-3500-cr (CON), 08-3592-cr (CON), 08-3597-cr (CON), 2009 WL 3166066 (2d Cir. Oct. 5, 2009) You remember the Rigas father and son team. Convicted in June 2004 of perpetrating a massive fraud involving Adelphia Communications, they were sentenced to 15 and 20 years imprisonment, respectively. Those sentences were reduced 12 and 17 years, respectively after remand following their initial appeal. Well, they appealed again, arguing that, among other things, their sentences were substantively unreasonable. The appeals were rejected. In doing so, however, the Second Circuit finally put some meat on the bones of substantive reasonableness review. And its not pretty from the defense perspective. Specifically, the Second Circuit found that: Our
decisions addressing substantive reasonableness have focused more on
the process of sentencing than on actually defining the boundaries of
substantive reasonableness. Insofar as we have defined as
“unreasonable” a sentence that cannot be “‘cannot be located within
the range of permissible decisions,’” that definition is obviously
circular--what is reasonable or unreasonable is what other cases have
deemed reasonable or unreasonable. It is therefore unsurprising that
several courts, including our own, have cautioned against converting
review for substantive reasonableness into a “rubber stamp.” In
other areas of the law, we employ various concepts that seek to capture
the same idea represented in the phrase “substantive reasonableness.”
For example, we held that in considering a motion for a new trial in a
criminal case following a jury verdict, the essential inquiry is
whether a guilty verdict is manifestly unjust. We examine intentional torts by state actors
under a similarly imprecise “shocks-the-conscience” standard. The manifest-injustice, shocks-the-conscience, and substantive
unreasonableness standards in appellate review share several common
factors. First, they are deferential to district courts and provide
relief only in the proverbial “rare case.” Second, they are highly
contextual and do not permit easy repetition in successive cases.
Third, they are dependent on the informed intuition of the appellate
panel that applies these standards. In sum, these standards provide a
backstop for those few cases that, although procedurally correct, would
nonetheless damage the administration of justice because the sentence
imposed was shockingly high, shockingly low, or otherwise unsupportable
as a matter of law. Of
course, an “intuitive” review cannot be an invitation to mischief by
tinkering with any sentence that appellate judges simply do not like. Responsible appellate review
of sentences necessarily places great trust in sentencing courts while
still recognizing the responsibility to examine the actual sentence
itself (quite apart from the procedures employed in arriving at the
sentence).
Is the Second Circuit saying that a sentence can only be substantively unreasonable if it "shocks the conscience" or is "manifestly unjust"? And, if so, is substantive reasonabless review (in practice) dead?
United States v. Ray, 578 F.3d 184 (2d Cir. 2009) There was a 15 (that's right -- 15) year gap between a decison by the Second Circuit reversing Ray's sentence and remanding for resentencing, and the actual resentencing hearing, at which Ray was sentenced to six months of community confinement. Check out the decision for all the details concerning the basis for the ruling, but the bottom line is that the Second Circuit found that the 15 year delay violated Ray's right under the due process clause of the Fifth Amendment to "speedy sentencing." And although it did not directly decide the issue, the Second Circuit indicated that the appropriate remedy for a speedy sentencing violation is a sentence of time served (particularly where the delay in imposition of a custodial sentence "threatens to undermine her successful rehabilitation").
United States v. Feaster, No. 07-CR-874 (JBW), 2009 WL 2757157 (E.D.N.Y. Aug. 26, 2009) The district court sentenced Feaster to 120 months (10 years) imprisonment (the mandatory minimum for his narcotics offense), but was clearly not happy about it. Specifically, the district court was not happy with certain Second Circuit rulings that "any criminal history category adjustment" -- including adjustments for relatively minor offenses that overstate the seriousness of a defendant's criminal history -- "otherwise authorized may not be considered in the context of safety valve eligibility." And it wasn't shy in letting its views be known: The
inequity flowing from this rather obscure-and substantively
dubious-guidelines criterion for safety valve eligibility may, as the
Commission's report states, be infrequent. But it is no less real and
no less unfair for the few ill-fated defendants facing what can only be
considered a “pothole on the road to justice.” It also violates the
fundamental statutory requirement to consider in sentencing “the need
to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” . . . To take away
years of a young man's life based on bureaucratic rigidity under the
banner of “criminal justice” is an intolerable cruelty.
United States v. Santano, No. 07-CR-874 (JBW), 2009 WL 2600356 (E.D.N.Y. Aug. 24, 2009) An unusual procedural history and flexibility on the part of the district court yields a just sentence. Santano was convicted of conspiracy to distribute and possession with intent to distribute more than 50 grams of crack cocaine -- an offense for which he faced a 120 month (10 year) mandatory minimum sentence. At a November 25, 2008 sentencing hearing, the district court was prepared to sentence Santano to 120 months, but recessed the sentencing hearing so that he could consult with his attorneys about possible "safety valve" consideration. Even with that consultation, Santano refused. Thus, the distirct court sentenced him to 120 months imprisonment. The very next day, though, the district court issued an order staying the sentence pending a psychiatric evaluation. That evaluation indicated that Santano did not suffer from any major medical illness and was capable of proceeding with sentencing. Nevertheless, in the intervening time period, Santano availed himself of the "safety valve." Thus, at a June 22, 2009 hearing, the prior sentence was "cancelled" and Santano was sentenced to 37 months imprisonment. "Cancellation" of sentencing proceedings may not appear in the Federal Rules of Criminal Procedure. But with the right judge, prosecutor and defense attorney, fairness and justice can be achieved.
United States v. Ware, 577 F.3d 442 (2d Cir. 2009) Ware was convicted of securities fraud and conspiracy to commit securities fraud, and was sentenced principally to 97 months imprisonment. Proceeding pro se on appeal, Ware challenged, among other things, the district court's application of a 4 level role enhancement. At sentencing, though, Ware had not challenged the district court's role enhancement. Accordingly, his challenge to the sufficiency of findings was reviewable only for plain error. And the Second Circuit found such error to have occurred. Specifically, it "conclude[d] that the findings of the district court are not sufficient to reveal a factual basis for the court's conclusion that Ware's criminal activity involved five or more 'participants' or was 'otherwise extensive' within the meaning of the Guidelines 3B1.1(a). Thus, the Second Circuit reversed Ware's sentence, and remanded either for supplemental factual findings or for resentencing. The underlying facts relating to the district court's conclusions concerning the absence of an adequate factual basis for the role enhancement are not as important as the larger point -- to wit, that it is "plain error" for a district court to impose a role enhancement whatever the circumstances without adequate findings of fact. This is consistent with the Second Circuit's general direction concerning how sentencing hearings should be conducted in the post-Booker world. The only question is this: Will "plain error" analysis be extended to any other factual findings upon which sentences are based?
United States v. Bender, No. 08-3103-cr., 2009 WL 2476691 (2d Cir. Aug. 14, 2009) Bender challenged the procedural and substantive reasonabless of his 120 month sentence. Specifically, the Second Circuit noted that the district court had satisfied its obligation to make the requisite factual findings by indicating in its written judgment that it was adopting the findings set forth in the PSR. But it "nevertheless" noted that "the court should have provided a written statement of the specific reasons for its sentence." After all, how can one be sure a sentence is fair if the sentencing judge doesn't explain the reasons for the sentence? 120 months is a long time to wonder why one is serving 120 months.
United States v. Giordano, No. 07-3487-cr (2d Cir. Aug. 12, 2009) (found here) Giordano challenged, among other things, the substantive reasonableness of his 37 year sentence for some clearly bad conduct that is not detailed in the Second Circuit's summary order. Of interest to those interested in substantive unreasonableness, the Second Circuit noted that the "sentence is surely at the upper end of the range of reasonableness for these offenses, but we cannot say that this range has been exceeded." What would?
United States v. Freeman, Docket No. 08-1886-cr., 2009 WL 2430667 (2d Cir. Aug. 10, 2009) On appeal, Freeman challenged the district court's application of a four level enhancement for the possession of images containing sadistic or masochistic conduct. See U.S.S.G. 2G2.2(b)(4) ("If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels"). Freeman did not prevail. Indeed, the Second Circuit held that "when a District Court makes an objective determination that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, the court establishes an adequate basis for the application of the enhancement set forth in section 2G2.2(b)(4)." More specifically, the Second Circuit relied on its prior decision in United States v. Delmarie, 99 F.3d 80 (2d Cir. 1996), finding that that case set forth two principles. First, the determination of whether an image is sadistic . . . is an objective one." As the Second Circuit explained: the purpose of the act depicted [and] the reaction of the actor are irrelevant to this determination. A sentencing court need not determine whether the people depicted in the image are deriving sexual pleasure from the infliction of pain; nor need it gauge whetehr the viewer of the picture is likely to derive pleasure from the fact that the image displays painful sexual acts. There is also no need for the sentencing court to determine either why the defendant possessed the images or whether he derived pleasure from them. . . . In sum, the subjective intent of those depicted in the image and of those who view the image are entirely irrelevant to the application of this enhancement. All that matters, as the text of the relevant provision of the Guidelines makes clear, is whether the material portrays masochistic conduct or other depictions of violence. This determination must e made based on an objective analysis of the material in question.
Second, the Second Circuit found that "if a sentencing court finds that (1) an image depicts sexual activity involving a minor and (2) the depicted activity would have caused pain to the minor, that court need not make any additional findings in order to impose a four-level enhancement" under Section 2G2.2(b)(4) of the Guidelines.
United States v. Amico, 573 F.3d 150 (2d Cir. 2009) Amico and the Government disputed the question of whether a 2001 amendment to the Guidelines applies retroactively. Specifically, Section 2F1.1(b)(7)B) of the 1998 Guidelines states, in relevant part, that if the offense "affected a financial instuitution and the defendnat derived more than $1,000,000 in gross receipts from the offense, increase by 4 levels." In 2002, this section of the Guidelines was amended to state, in relevant part, that if "the defendant derived more than $1,000,000 in gross receipts from one of more financial institutions as a result of the offense, increase by 2 levels." The Second Circuit joined the Seventh Circuit in finding that the amendment substantively changes an unambiguous provision of the Guidelines, and therefore does not apply retroactively. (If, by contrast, the amendment had been found to be a clarification, it would have applied retroactively.)
United States v. Fishman, 631 F. Supp. 2d 399 (S.D.N.Y. 2009) Fishman was a partner at law firm Latham & Watkins, and pled guilty to a multi-year scheme in which committed dozens if not hundreds of acts of dishonesty and fraud -- an offense made worse by the fact that he was an attorney and therefore an officer of the Court. But Fishman had some things going for him -- significant charitable and civic activities, particularly his work at the Sinai Schools. And based on that work, Fishman received a sentence of 15 months imprisonment, even though his advisory Guidelines range was 27 to 33 months. What's most interesting in the case, though, is views expressed by the Court when confronting offenders who present so much positive information in such a persuasive manner. Indeed, the Court's detailed explanation shines a light on what judges might really think and, thus, gives guidance to defense lawyers in preparing sentencing memoranda. It's worth reading in its entirety. Here are some excerpts: As
a point of departure, the Court notes that Fishman's presentation,
though stressing points that argue for uniqueness, distinction and
individual consideration, in fact is not uncommon. The Court has heard
much of the argument in echoes from similar pleas for mercy frequently
urged in this courthouse, indeed in courtrooms across the country. In
particular, Fishman's argument falls into a pattern advanced by a
subset of the white collar criminal. This category encompasses a select
class: distinguished, reputable, highly esteemed model citizens such as
Fishman. The list of their achievements and virtues is long and
impressive. At home, they are good family men and women, caring
spouses, loving parents, loyal and reliable to friends. At work, they
are looked up to as outstanding professionals and business partners. To
their community's charities and public causes they are generous patrons
and sponsors. And as worshipers they are devout, often rising as leaders of the congregation. Yet,
for all of their outward rectitude, these otherwise good people suffer
a fatal flaw: they sometimes lead a double life. Somewhere at the core,
in a distorted dimension of the soul, the public image they present is
as false as the lies they tell to sustain the appearances of an
exemplary life. And somehow, for reasons that always defy reason, they
fall into crime, doing wrongful deeds that seem aberrational, selfish
and greedy acts that, when caught, they claim are entirely out of
character with their otherwise law-abiding lives. Typically,
these offenders appear at their sentencing well-represented and
well-prepared, offering ample reasons why the Court should exercise
exceptional discretion and show maximum leniency. A key aspect of the
evidence proffered in mitigation consists of medical records and
psychological evaluations attesting that the defendant's criminal
conduct, so at odds with an upright character, was driven by some
recently diagnosed mental disorder, or ungovernable impulse, other
unknown inner or outer demon he could not conquer that made him do it.
An outpouring of sympathy and support from relatives, friends, business
colleagues, community leaders, and even some of the victims,
accompanies the presentation. The beneficiaries of the defendant's
charitable work, in some cases intensified since his arrest, testify
about his devotion of good will and donation of resources, and
underscore the loss they and the larger community would suffer if
deprived of the defendant's invaluable contributions to their public
services. And of course, the defendant rises in the courtroom to convey
profound, personal apologies for all the sorrow he has caused to all
the people with whom he broke faith and hurt and betrayed and shamed. As
it ends, the presentation comes to several conclusions it urges the
Court to adopt: that the defendant has already shown full
rehabilitation and earned redemption; that there is absolutely no
likelihood of recidivism from this defendant and thus no threat of
future harm to society; that no further need exists to punish the
defendant because he has been wracked long enough by shame, by ruin of
his family and personal life, by loss of his primary means to earn a
livelihood. The purposes of sentencing thus having been satisfied,
ergo: a sentence of any incarceration would serve little or no useful
purpose; probation would suffice. Let
me stress at this point that the Court is not unmindful or
unsympathetic to these points. There is much in Fishman's plea to
commend the compassion it seeks to evoke. But the argument goes only so
far. Compelling as it sounds on the surface, it fails in some essential
ways. Fundamentally, it is flawed by what it omits. In particular, it
makes no account of several other circumstances courts are instructed
to weigh adequately in ordering a fitting sentence: to reflect the
severity of the crime; to promote general respect for the law; to avoid
unwarranted sentencing disparities; and to consider the impact of the
crime not only on its immediate victims, but on the larger social
order. These principles are interrelated. They share vital links with
some basic legal and philosophical concepts, ideals emblematic of the
law profoundly significant for sentencing to ensure a right and just
result for all concerned: fairness, balance, proportionality, and
equality of treatment under law for relatively similar persons and
circumstances. In sentencing, these principles seek to ensure that
judgments overall fairly align so as to achieve, like planets in orbit,
a special form of equilibrium, a proper
balance in the delicate symmetry of justice.
United States v. Kidd, No. 07-CR-798 (JBW), 2009 WL 2226486 (E.D.N.Y. June 5, 2009) Kidd pled guilty to a heroin offense, for which she faced an advisory Guidelines range of imprisonment of between 41 and 51 months. But she cooperated with the Government "at some risk to herself," and therefore earned a non-Guidelines sentence of five years probation. A reminder of the power of cooperation.
United States v. Peguero, No. 07-2306-CR., 2009 WL 2524006 (2d Cir. Aug. 19, 2009) Peguero appealed from a judgment sentencing him to 50 months imprisonment. At sentencing the district court stated: "I have the ability to do justice and depart [or impose] a sentence independently of the Guidelines, but my opinion is that that is reserved for really special situations, and I even then take the Guidelines into serious consideration." From the Second Circuit's viewpoint, that statement crossed the line. Specifically, the Second Circuit found that "the district court presumed that the Guidelines sentence was reasonable," and therefore committed procedural error.
United States v. Martin, No. 08-2622-cr., 2009 WL 2524003 (2d Cir. Aug. 19, 2009) Martin appealed his 180 months sentence for a cocaine offense, which sentence was substantially below the sentencing range of 262 to 362 months recommended by the Guidelines. The sole issue on appeal was whether the district court erred in declining to further reduce Martin's sentence to reflect his attempts to cooperate witht the Government. Although acknowledging that the district court had the authority to depart downward based on non-5K cooperation, the Second Circuit ultimately rejected Martin's appeal because the district court's "reasons were thoroughly explained and manifestly reasonable." Thus, the Second Circuit found no error in Martin's sentence -- in other words, a high level of deference to the district courts.
United States v. Majano-Alvarez, No. 07-CR-839 (JBW), 2009 WL 2878447 (E.D.N.Y. Sept. 2, 2009) Majano-Alvarez pled guilty to a single-count indictment for illegal re-entry. He faced an advisory Guidelines range of 57 to 71 months, yet was sentenced to 30 months imprisonment -- a substantial non-Guidelines sentence. Why? Because his criminal history score over-represented the seriousness of his criminal past. Specifically, "a minor conviction for unlawful concealment of a grocery item with a price tag of $5.65 caused an increase in the defendant's criminal history category from three to four; four criminal history points were found to over-represent his record. He is a youn, intelligent, and capable of improving himself."
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