United States v. Bonilla, Docket No. 09-1799-cr (2d Cir. Aug. 13, 2010) (found here) -- If you're looking for a good summary of the law and rules governing appellate sentencing review in the Second Circuit, look no further than Bonilla:
We review sentences for abuse of discretion, a standard that "incorporates de novo review of questions of law (including interpretation of the [Sentencing] Guidelines) and clear-error review of questions of fact." United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). In applying the abuse of discretion standard in sentencing appeals, we are constrained to review for reasonableness. See Gall v. United States, 552 U.S. 38, 46 (2007). It is by now familiar doctrine that "[t]his form of appellate scrutiny encompasses two components: procedural review and substative review. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Upon substantive review, a trial court's sentencing decision will be classified as error only if it "cannot be located within the range of permissible decisions." Id. (internal quotation marks omitted). The length of the sentence imposed is what is examined on substative review. United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). Substantive reasonableness review can take place any time following procedural reasonableness review, including during the same appeal. See Gall v. United States, 552 U.S. 38, 51 (2007) ("[An appellate court] must first ensure that the district court committed no significant procedural error . . . [and,] [a]ssuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence implosed . . . ."); see also United States v. Dorvee, __ F.3d __, 2010 WL 3023799, at *7 (2d Cir. Aug. 4, 2010) (noting that we are empowered to address "both the procedural and substantive reasonableness of [a] sentence in the course of an appeal where we find both types of error"). In engaging in substantive reasonableness review we recall that
[t]he 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.
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (footnote omitted).
With respet to procedural review,
a district court commits procedural error where it fails to calculate the Guidelines range (unless omission of the calculation is justified), makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory. It also errs procedurally if it does not consider the 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact. Moreover, a district court errs if it fails adequately to explain its chosen sentence, and must include an explanation for any deviation from the Guidelines range.
Cavera, 550 F.3d at 190 (internal citations and quotations omitted).
In arriving at a sentencing decision, the District Court must consider the now-advisory Guidelines, for they are the "starting point and the initial benchmark," Gall, 552 U.S. at 49, and are not to be treated as only a "body of casual advise," United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005). The process of sentence selection and the place of the Sentencing Guidelines in that process has been established as follows:
First, the Guidelines are no longer mandatory. Second, the sentencing judge must consider the Guidelines and all of the other factors listed in Section 3553(a). Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (i) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence. Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.
Crosby, 397 F.3d at 113.
A sentencing court is free to vary from the Guidelines on the basis of a policy disagreement with the Guidelines. Indeed, we have held that "a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that [policy] disagreement applies to a wide class of offenders or offenses." Cavera, 550 F.3d at 191. In Kimbrough v. United States, 552 U.S. 85 (2007), the Supreme Court found that a district court was entitled to conclude that the existing Guidelines provision for crack cocaine was greater than necessary to meet the standards of 3553(a) because the provision "d[id] not exemplify the Commission exercise of its characteristic institutional role." Id. at 109.
We recently determined that "[t]he district court committed procedural error when it concluded that it could not consider a broad, policy-based challenge to the child pornography Guidelines." United States v. Tutty, __ F.3d __, 2010 WL 2794601, at *3 (2d Cir. July 16, 2010). In United States v. Dorvee, __ F.3d __, 2010 WL 3023799, at *9 (2d Cir. Aug. 4, 2010), we noted that "Sentencing Guideines are typically . . . based on data about past sentencing practices but that "the Commission did not use this empiracal approach in formulating the Guidelines for child pornography," acting instead at the direction of Congress. We suggested in Dorvee that a sentencing court could, in the exercise of its broad discretion, take into account the "unusual provenance" of the Guidelines in cases of that nature. Id. at *12.