United States v. Cavera, Docket Nos. 05-4591-cr(L), 05-5210-cr(CON) (2d Cir. June 6, 2007) (found here)
In an interesting twist, the Second Circuit in Cavera reversed an above-Guidelines sentence based on the finding in United States v. Rattoballi (discussed here, here and here) that it views "as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant" (emphasis added here and in the Second Circuit's opinion). In doing so, however, the Second Circuit asserts some strong language supportive of the Guidelines -- regardless of whether there is a presumption of reasonableness for Guidelines sentences in the Second Circuit. Judge Calabresi's concurring opinion is also a "must read."
Cavera was convicted of a firearms offense, for which he faced a Guidelines range of 12 to 18 months imprisonment. The district court, however, imposed a non-Guidelines sentence of 24 months based on community-specific considerations -- namely, its belief that gun trafficking in New York City inflicts greater harm and requires stiffer penalties to achieve deterrence than the same offense committed in a less densely populated part of the country. The Second Circuit reversed, finding that:
Consideration of regional and local factors is improper because injecting them into a sentencing court's analysis undercuts and directly contravenes one of the primary purposes of the Guidelines: to diminish unwarranted sentencing disparity.
The trial court's reasoning would render the Guidelines a nullity and would result in a return to disparate sentencing across districts where courts fashion sentences, not on facts unique to defendants' conduct or circumstances, but on the circumstances prevailing in the locality where each court sits. . . . We decline to open the door to a return to such unfettered discretion in sentencing.
There is, however, something for everyone in Cavera. In discussing the weight that the district court put on one Section 3553(a) factor as compared to another, the Second Circuit stated that it "does not mean to suggest that the consideration of sentencing disparity under factor (a)(6) trumps or should be given more weight than considerations under factor (a)(2)." This language seems to support the view that all Section 3553(a) factors should be treated equally, notwithstanding the language in Rattoballi that 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." The Second Circuit went on to note that "district judges are afforded wide lattitude to impose non-Guidelines sentences based on case-specific applications of the § 3553(a) factors" and that "[r]ead together, our cases addressing sentences outside the Guidelines range make clear that Booker requires district courts to tailor sentences to reflect an application of the § 3553(a) factors."
Of significant interest, Judge Calabresi submitted a "concurring dubitante" opinion (which I understand to mean "doubting the correctness of the decision") in which he questioned the line between categorical factors (factors that are not properly taken into account even after Booker) and individual factors (consideration of which is permitted). Judge Calabresi persuasively argues that:
It has always been the case -- even under the strict Guidelines system -- that the appropriate penalty on a defendant can take into account the nature of the victims. And, understandably so, because this factor affects the culpability of the defendant, and "whether additional deterrents are necessary." It would seem that the locality in which a crime is committed is another, similar, circumstance that can affect both the harm caused by a crime -- and thus the culpability of the criminal -- and the effectiveness of a given deterrent. Why, then, may not a judge respond to geographic (and other like factors) in setting a penalty guided by section 3553(a)?
I would suggest that there are two sorts of reasons why courts have been hesitant to permit consideration of geographical differences. The first -- habit -- is dubious. After so many years of living with the Guidelines they have become "habit forming," and courts find it hard not to use the Guidelines as more of a crutch than is proper under Booker. If something was not all right under the absolute Guidelines system, how can it be okay now? The answer to that is plan. The Guidelines were too rigid, and, because of that rigidity, they did not -- quite apart from their constitutional flaws -- bring about equality in sentencing.
The second set of reasons is plausible, but not without some problems. It has to do with the vagueness and subjectivity that may too readily infect a judge's move from the categorical differences like geography to individual culpability. A judge may too easily rely on a hunch that crime is worse in an inner city area or in more crowded conditions and, on that basis, modify sentences. Moreover, that hunch, precisely because it may be based on intuitions, not to say prejudice, can lead to inequalities in sentences that are not only inappropriate but are of a sort that appellate courts are frequently unable to rein in. Hence, it is easy to understand why an appellate court would -- like the majority here -- prefer to exclude all such factors. But when appellate courts do this, they also exclude factors that are objective and which do not link directly to those things that § 3553 says should be taken into account.
In the end, failure to allow such differences to be considered always does the same thing. It treats as if they were the same, situations that are not. And doing this, while it may look like equality, is the very opposite.
This is just a sample of Judge Calabresi's concurring opinion. You, however, should read it in its entirety. It's facinating. (He ultimately concurs with the majority because was "not sure whether the learned district court, in reaching its sentence, was guided solely or principally by those differences -- reflected in geography -- that are sufficiently objective, or also, in substantial part, by differences, also attributed to geography, that, being based on intuitions and hunches, are properly viewed as more dangerous that they are worth.")
After such a long dry-spell in substantive sentencing decisions from the Second Circuit, why now -- just before the presumed release date of the Rita decision from the Supreme Court -- did the Second Circuit decide to release this somewhat contentious opinion?
Readers -- let me know your thoughts.