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?