United States v. Canova, Docket No. 05-6439-cr, 2007 WL 1321286 (2d Cir. May 8, 2007) (found here)
In sum, Canova "concerns the reasonableness of a downward departure from a Sentencing Guidelines calculation and the reasonableness of the resulting sentence." In a word, the Second Circuit reversed the downward depature and remanded the case for resentencing. As always, however, the devil is in the details.
Canova was convicted of a series of fraud offenses. At his original senetencing (this, after all, was his second appeal), the district court determined to impose a Guidelines sentence. The PSR calculated an advisory Guidelines range of 57 to 71 months imprisonment based largely on a loss of $5,000,000. The district court, however, conducted its own factual and Guidelines analysis, and determined an advisory Guidelines offense level of 8 (0-6 months imprisonment) based on an absence of loss. And then the district court departed downward by 6 offense levels based on Sanova's "extraordinary record of civil and public service." In the end, the district court imposed a sentence of one year probation.
The Government -- as would be expected -- appealed Canova's sentence, challenging the district court's loss calculation and charitable service departure. (The Government also challenged the district court's denial of an obstruction of justice enhancement.) The Second Circuit reversed the district court, finding the sentence to have been erroneous because of its failure to consider loss, and stated that the district court could consider the extent of its "charitable services" departure based on the higher advisory Guidelines range dictated by proper consideration of loss.
At resentencing, the district court calculated the advisory Guidelines offense level using a loss figure of $5,000,000. But -- in what can only be described as a single-finger salute to the Second Circuit -- it then departed by 15 offense levels on the ground that the monetary loss overstated the seriousness of the offense and bceause "the previous departure for public service [did] not fully reflect the Court's sentencing objectives in light of the newly imposed loss enhancement." As the district court explained: "[T]he higher guideline range calls for a more extended downward depature for the defendant's service to the country and community." After applying the 15 level departure, the district court -- no surprise here -- arrived at the same offense level and imposed the same one year probationary sentence.
The Government appealed. Again. And the Second Circuit reversed. Again. Why? Because the sentence was both procedurally and substantively unreasonable.
Procedural Reasonableness -- The Second Circuit found that the probationary sentence was procedurally unreasonable for three reasons. First, the Second Circuit found that the 15 level departure was procedurally unreasonable because the "District Judge exceeded his discretion in deciding that the $5 million loss overstated the seriousness of the offense." Specifically, the Second Circuit found (among other things) that the the district court considered only actual harm and failed to consider intended loss. Second, the Second Circuit found that the district court's reliance on the victim's conduct as a gorund for departure was procedurally unreasonable because it is not a permissible ground for a departure. Third, the Second Circuit found that the sentence was procedurally unreasonable because it relied on another party's restitution payment as a basis for depature (not a terribly important point for the decision and therefore just noted here).
Substantive Unreasonableness -- Making what seems like new law, the Second Circuit found that:
In many cases involving a departure, it would be appropriate to consider separately the reasonableness of the extent of the depature and the reasonableness of the resulting sentence. In this case, however, where the departure resulted in a sentence of no imprisonment at all, the considerations that bear on the reasonableness of the extent of the departure apply equally to the reasonableness of the sentence, and at this point we need only consider the reasonableness of the extent of the departure.
Hmmm... If procedural reasonableness involves consideration of error in a Guidelines calculation (inclusive of any Guideline departures that are necessarily part of the Guidelines calculation) and substantive reasonabless involves the actual reasonableness of the ultimate sentence imposed, what is the Second Circuit doing in considering the reasonableness of the extent of the depature when considering whether or not the sentence is substantively reasonable? Why is the Second Circuit blurring the lines between what it has clearly set forth in numerous other opinions as the distinctions between procedural and substantive reasonableness? This question in this case is particularly peculiar since the Second Circuit's decision on the first appeal in this matter specifically stated that the district court could consider the extent of its "charitable services" departure based on the higher advisory Guidelines range dictated by proper consideration of loss.
But that's not all. The Second Circuit went on to consider the "method for assessing the extent of a departure in order to determine its reasonableness." The Second Circuit considered two "plausible" methods for that assessment. First, an absolute assessment, which "would gage the extent of the departure, measured in levels, without regard to the starting point from which the departure was made." Second, a relative assessment, which "would gage the extent of the departure either by the increase or decrease in the resulting prison time . . . or by the percentage of increase or decrease of either prison time or levels." Although the Second Circuit declined to expressly adopt either measure, it expressed a preference for one or more of the relative assessment methods because "[w]henever the extent of a decrease (or increase) is assessed for reasonableness, it seems evident that the starting point should be considered."
And that's not even all. The Second Circuit went on to state that "[t]randscending the numbers in this case, however, is the blunt fact that the effect of the departure and resulting sentence was to treat Canova as though he had intended to cause no loss at all." Even if it matched the first sentence (as the Second Circuit noted), so what? Isn't it at least possible that a departure under the Guidelines could completely counter an increase in an advisory Guidelines offense level due to some other factor, such as loss? And what business does the Second Circuit have in second-guessing the district court's determination of how much impact a ground for a downward depature should have?
As Fielding Melish (Woody Allen's character in Bananas) said: "I object, your honor! This trial is a travesty. It's a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham." Well, maybe that's going too far. But Canova is surely a bit of a mystery.