United States v. Rattoballi, Docket No. 05-1562-cr (2d Cir. June 15, 2006) (found here)
Reading sentencing decisions from the Second Circuit these days is a lot like dating a girl who maybe-sort-of-just-might-like-you -- you get very mixed messages. And, in light of the Second Circuit's prior decisions in United States v. Crosby, 397 F.3d 103 (2d Cir. 2006) and United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006), Rattoballi sends just such a mixed message.
I am frankly at a bit of a loss to reconcile Crosby, Fernandez and Rattoballi (as well as the numerous other Second Circuit sentencing decisions detailed on this blog). What I can do, however, is identify the primary policy statements set forth in Rattoballi and detail how they are inconsistent with Crosby and Fernandez (as well as, obviously, Booker) and other problems that they present.
1. "Our own review for reasonableness, though deferential, will not equate to a 'rubber stamp.' We are also under a duty to consider 3553(a)."
While surely objectively accurate, this is an awfully hostile tone that could only be justified in response to a documented record of district courts in the Second Circuit imposing wildly disparate post-Booker non-Guidelines sentences -- a record that simply does not exist. Indeed, any analysis of the post-Booker sentences imposed by the district courts of the Second Circuit strongly indicates that sentencing decisions have largedly either adhered to the Guidelines or varied only slightly from the Guidelines. In a word, the fear of a return to a pre-Guidelines sentencing system has not been realized. Thus and in light of the Second Circuit's pronouncements in Crosby that reasonableness review "is inherently a concept of flexible meaning, generally lacking precise boundaries" and in Fernandez that "[r]easonableness review does not entail the substitution of our judgment for that of the sentencing judge," this assertion of authority over the district courts of the Second Circuit seems misplaced or at least inconsistent with prior positions concerning appellate review of sentencing decisions.
2. "In calibrating our review for reasonableness, we will continue to seek guidance from the considered judgment of the Sentencing Commission as expressed in the Sentencing Guidelines and authorized by Congress. The Guidelines cannot be called just 'another factor' in the statutory list, 18 U.S.C. 3553(a), because they are the only integration of the multple factors and, with important exceptions, their calculations were based upon the actual sentences of many judges. It bears noting that the Sentencing Commission is an expert agency whose statutory charge mirrors the 3553(a) factors that the district courts are required to consider."
This is plainly wrong for a number of reasons. First, 18 U.S.C. 3553(a) simply does not recognize the Guidelines or any other factor as being a "super-factor" or a first-among-equals. In fact, the Guidelines themselves are "just another factor" in 18 U.S.C. 3553(a) (albeit a factor with more substantive back-up and history). Second, the Guidelines are not "the only integration of the multiple factors" contained in 18 U.S.C. 3553(a). In fact, the Guidelines do not "integrate the multiple factors." If they did, the balance of 18 U.S.C. 3553(a) would be superfluous. Rather, 18 U.S.C. 3553(a) identifies factors that should be considered at sentencing that the Guidelines specifically and affirmatively assert are not subject to consideration at sentencing (such as the age and health of the defendant and the rehabilitative potential of the defendant). Third, this pronouncement from the Second Circuit cannot be squared with Booker. Indeed, consideration of the Guidelines as some kind of "super-factor" is tantamount to a return to a mandatory Guidelines system. Finally (well, perhaps not finally, but finally for purposes of this list), this pronouncement cannot be reconciled with Crosby (which held that "the Supreme Court expects sentencing judges faithfully to discharge their statutory obligation to consider the Guidelines and all of the other factors listed in section 3553(a)") or Fernandez (in which the Second Circuit "decline[d] to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable"). Indeed, it bears noting that the Second Circuit failed even to acknowledge Crosby or Fernandez in setting forth this principle.
3. "[W]e will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant, but instead reflects attributes common to all defendants. Disparate sentences prompted the passage of the Sentencing Reform Act and remain its principle concern."
Requiring findings of factors that are "unique or personal" to a particular defendant prior to the imposition of a non-Guidelines sentence is tantamount to imposing a downward departure analysis on the requirement to consider all Section 3553(a) factors. More specifically, requiring the presence of factors that are "unique or personal to a particular defendant" and that are not "attributes common to all defendants" to justify imposition of a non-Guidelines sentence is remarkably similar to the downward departure analysis called for by the Guidelines, which requires the presence of "an aggravating or mitigating factor of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines." Neither Booker nor the plain language of 18 U.S.C. 3553(a) provides any support for this new proposition of law.
4. "A non-Guidelines sentence that a district court imposes in reliance on factors incompatible with the Commission's policy statements may be deemed substantively unreasonable in the absence of persuasive explanation as to why the sentence actually comports with the 3553(a) factors."
For some unexplained reason, the Second Circuit seems focused on the policy statements contained in the Guidelines. And this is one of the Rabbotalli court's multiple statements concerning those policy statements. It, however, is problematic. Initially, it bears noting that district courts have been aware since Crosby that they are still required to consider the policy statements contained in the Guidelines in making sentencing decisions ("[C]onsideration of the Guidelines will normally require determination of the applicable Guidelines range . . . and consideration of applicable policy statements"). While surely there is no harm in reminding district courts of this obligation, the inflammatory language chosen by the Second Circuit is surprising, particularly given the absence of evidence that district courts have been ignoring the Guidelines or its policy statements (as described above). Much more problematic, however, is the Second Circuit's statement that non-Guidelines sentences that are incompatible with Guidelines policy statements risk reversal unless a "persuasive explanation" is provided as to why the sentence imposed comports with Section 3553(a). Like above, this proposition of law improperly elevates the Guidelines to a stature as first-among-equals within the Section 3553(a) sentencing framework. Moreover, this proposition sounds an awful lot like a presumption that a Guidelines sentence is reasonable, and that a district court must "sell" the Second Circuit on any non-Guidelines sentence it might impose. And I thought that Fernandez pretty clearly stated that the Second Circuit "decline[d] to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable"?
5. "[W]e note that several other circuits have endorsed a rule that requires district courts to offer a more compelling accounting the farther a sentence deviates from the advisory Guidelines range. While we have yet to adopt this standard as a rule in this circuit, and do not do so here, we emphasize that our own ability to uphold a sentence as reasonable will be informed by the district court's statement of reasons (or lack thereof) for the sentence that it elects to impose."
I'm not sure if it was Beavis or Butthead who said: "Are you threatening me?" Now, let me be crystal clear: I am NOT comparing the Second Circuit to Beavis or Butthead (or any other cartoon character). But this sure sounds like a threat ("While we have yet to adopt this standard as a rule in this circuit . . ."). Moreover, imposition of such a rule (or at least the threat of such a rule) cannot be squared with the Second Circuit's prior pronouncements in Crosby ("Therefore, we will not prescribe any formulation a sentencing judge will be obliged to follow in order to demonstrate discharge of the duty to 'consider' the Guidelines. In other words, we will no more require 'robotic incantations' by district judges than we did when the Guidelines were mandatory") or Fernandez, which held that:
"A sentencing judge's obligation to consider the advisory Guidelines range generally amounts to a duty to take into account a particular recommended sentencing range. If the judge improperly calculates that range, she cannot be said to have genuinely considered it. We therefore ordinarily require a sentencing judge to put her Guidelines calculations on the record. We have imposed no similar requirement that a sentencing judge precisely identify either the factors set forth in 3553(a) or specific arguments bearing on the implementation of those factors in order to comply with her duty to consider all the 3553(a) factors along with the applicable Guidelines range. Consideration of the 3553(a) factors is not a cut-and-dried process of factfinding and calculation; instead, a district judge must contemplate the interplay among the many facts in the record and the statutory guideposts. That context calls for us to 'refrain from imposing any rigorous requirement of specific articulation by the sentencing judge.' . . . Accordingly, we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors."
In addition, Booker provides no basis for requiring a more "compelling accounting" of a sentence that is, for example, a 30% deviation from an advisory Guidelines range than a sentence that is, for example, a 10% deviation from an advisory Guidelines range. Indeed, requiring such a more "compelling accounting" is tantamount to forcing closer compliance with the Guidelines -- a directive that cannot be reconciled with Booker. Put another way, linking the amount of detail required in a sentencing decision to the amount of deviation from the Guidelines sends a strong signal to district court judges that compliance with the Guidelines is expected more often than not.
The foregoing five points are just what strike me as the five most prominent "mixed messages" sent by the Second Circuit in Rattoballi. Others exist, and my continued examination of Rattoballi will ferret them all out. Or perhaps I'm just missing the "unifying theory of sentencing" that can explain the inconsistencies that jump out at me in my readings of Crosby, Fernandez and Rattoballi. (If so, please enlighten me.)
The only reconciliation of these three decisions that I have thus far been able to make is really no reconciliation at all. Rather, it is a recognition that different panels of the Second Circuit have reached different conclusions -- Crosby (Circuit Judges Newman, Kearse and Cabranes), Fernandez (Circuit Judges Miner and Cabranes and District Judge Curtin) and Rattoballi (Chief Judge Walker and Circuit Judges Winter and Jacobs). If so (and as suggested by the Second Circuit Blog) an en banc hearing on Rattoballi may be required to achieve some stability in sentencing law in the Second Circuit.