United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (found here)
Pereira has not pointed to any "case law, and we are not aware of any, holding that a sentencing judge must refer to § 3553(a) at all, much less do so without prompting." Is the Second Circuit serious?
Pereira pled guilty to illegally reentering the United States after his 1998 deportation following a conviction for an aggravated felony in New York. Pereira's Guidelines range was 41-51 months. The sentencing court, however, imposed a 62 month sentence that was, in part, based on an increase in Pereira's offense level arising from his 1998 conviction. Pereira challenged the reasonableness of his sentence as well as the enhancement arising from his 1998 conviction.
Reasonableness of the Sentence
Pereira argued that the sentencing court had not properly considered the 18 U.S.C. § 3553(a) factors and, specifically, that the sentencnig court failed to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. Specifically, Pereira challenged the failure of the sentencing court to consider the disparities between jurisdictions that do and do not have fast-track disposition systems.
With regard to the reasonableness of the sentence, the Second Circuit set forth its usual prose as to the obligations of sentencing courts to consider 18 U.S.C. § 3553(a) and the low threshold by which such consideration will be judged, and affirmed his 62 month sentence as reasonable. But Pereira's case must be a new "low" in what the Second Circuit considers sufficient for adequate consideration of 18 U.S.C. § 3553(a). Indeed, in a footnote, the Second Circuit noted that Pereira had not pointed to any "case law, and we are not aware of any, holding that a sentencing judge must refer to § 3553(a) at all, much less do so without prompting."
Judge for yourself. Here is the exchange from the sentencing transcript (as quoted and relied upon by the Second Circuit).
Gov't: Now that the Court has imposed the sentence, it's obvious from the Court's 62-month sentence, the Court understands that the sentencing guideliens which are 41 to 51 months are advisory.
Court: Of course
Gov't: And 3553, all the factors set forth.
Court: I have.
Gov't. Your Honor, on appeal, and I expect there will be an appeal in this case because there was no waiver, the issue may be framed such that if the Second Circuit were to conclude that the 16 point enhancement based upon the youthful offender conviction was somehow erroneous, the question will be whether or not that somehow appreciably affected the Court's sentence. So I would ask would the Court be willing to state would you have imposed the 62-month sentence?
Court: I would have. Because the guidelines are advisory, and I based my determination on prior conduct, including convictions, and the present course of conduct, and the person's background and likelihood of rehabilitation, and their expression of remorse.
The Second Circuit surprisingly found that the foregoing was adequate consideration of 18 U.S.C. § 3553(a) and that the foregoing was an adequate articulation of the sentencing court's reasons for imposnig a non-Guidelines sentence.
Notice of Imposition of a Non-Guidelines Sentence
An interesting aside. In United States v, Anati, 457 F.3d 233 (2d Cir. 2006) (discussed here) the Second Circuit held that a district court may not sue sponte impose a non-Guidelines sentence unless it gives the adversly affected party advance notice and allows that party the opportunity to challenge the grounds for such a sentence. The Second Circuit found that Pereira had waived this argument because he had not raised it on appeal.
Query as to whether Pereira was even aware of Anati at the time that he submitted his appellate briefs and made his appellate argument. Indeed, Anati was not decided until July 20, 2006.
With regard to fast-track disparity, the Second Circuit essentially punted, finding that: (1) there is no binding precedent from the Supreme Court or the Second Circuit on the issue; (2) the sentencing court's failure to consider the issue was not "egregious and obvious" to the extent that the sentencing court did not consider the issue (the Second Circuit appied that standard because it found the issue had not been preserved below); and (3) the other circuits that have addressed the issue (the First, Seventh and Eighth Circuits) have all concluded that "the sentencing disparities that arise from the use of fast-track programs in some jurisdictions do not, in and of themselves, render unreasonable the sentences received by those convicted of unlawful reentry in areas without such programs."
Youthful Offender Adjudications
Pereira also challenged a 16 level enhancement to his offense level arising from his 1998 conviction. The commentary to Section 2L1.2(b)(1)(A)(II) of the Guidelines provides that a felony committed before the defendant was 18 years old cannot be the basis for this enhancement" unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted." Pereira argued that his 1998 conviction was not classified as an adult conviction under New York law because it resulted in a youthful offender adjudication (Pereira was 16 years old at the time).
The Second Circuit applied its findings with regard to other Guidelines provisions in United States v. Jones, 415 F.3d 256 (2d Cir. 2005) (Section 4B1.2, the Career Offender Guideline) and United States v. Cuello, 357 F.3d 162 (2d Cir. 2004) (Section 2K2.1, the Unlawful Receipt, Possession, or Transportation of Firearms of Ammunition Guideline) to this issue, and concluded that "in determining whether a defendant's youthful offender adjudications are classified as adult convictions under the laws of New York, the district court must look to the 'substance' of the prior convictions and not merely how they are labeled by the state."