District Court Protest Concerning Criminal History Category Adjustments And The Safety Valve

United States v. Feaster, No. 07-CR-874 (JBW), 2009 WL 2757157 (E.D.N.Y. Aug. 26, 2009)

The district court sentenced Feaster to 120 months (10 years) imprisonment (the mandatory minimum for his narcotics offense), but was clearly not happy about it.  Specifically, the district court was not happy with certain Second Circuit rulings that "any criminal history category adjustment" -- including adjustments for relatively minor offenses that overstate the seriousness of a defendant's criminal history -- "otherwise authorized may not be considered in the context of safety valve eligibility."  And it wasn't shy in letting its views be known:

The inequity flowing from this rather obscure-and substantively dubious-guidelines criterion for safety valve eligibility may, as the Commission's report states, be infrequent. But it is no less real and no less unfair for the few ill-fated defendants facing what can only be considered a “pothole on the road to justice.” It also violates the fundamental statutory requirement to consider in sentencing “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” . . . To take away years of a young man's life based on bureaucratic rigidity under the banner of “criminal justice” is an intolerable cruelty.

Role Determination Based On Cooperating Witness' Say-So

United States v. Scippio, No. 07-0480-cr (2d Cir. Jan. 15, 2009)

Scippio argued on appeal that: (1) he was entitled to a minor role adjustment; and (2) the district court had failed to account for disparities between his sentence and those of his co-defendants.

As to the first issue, the Second Circuit noted that "it is not enough that a defendant played a lesser role than his co-conspirators; his conduct must have been minor when compared to the average participant in such a crime."  Fair enough.  But, as evidence of Scippio's role, the Second Circuit found that no minor role was played because of what he did (delivering drugs to many different drug dealers and collecting proceeds of sales) and what a cooperating witness said about him (calling him a "manager").  I can understand the first point, but the word that a cooperating witness attaches to someone's role seems a thin basis upon which to determine role.  We'd need to be understand what the cooperating witness meant by "manager" before basing such a determination on his word selection.

As to the second issue, the Second Circuit disposed of it quickly, finding that the district court had, in fact, considered his co-defendants who had accepted responsibility for their offenses and had not threatened cooperating witnesses.

Non-Guidelines Sentences Based On Fast-Track Disparity Still Possible In The Second Circuit?

United States v. Liriano-Blanco, Docket No. 06-2919-cr (Jan. 2, 2008) (found here)

Liriano-Blanco pled guilty to illegal re-entry charges.  The district court declined to impose a non-Guidelines sentence because it believed that it could not do so based on fast-track disparity.  But the district court also believed that Liriano-Blanco's sentence could be appealed, actually encouraged appeal so that the fast-track disparity question could be decided by the Second Circuit, and indicated that it would impose a different sentence if the Second Circuit ruled that a non-Guidelines sentence could, in fact, be based on fast-track disparity.  The only problem was that Liriano-Blanco signed a plea agreement containing an appeal waiver provision, and no one corrected the district court's misunderstanding at sentencing.  The Second Circuit remanded to correct this error.

What's interesting about Liriano-Blanco, however, is what the Second Circuit says about fast-track disparity.  We know that the Second Circuit found in United States v. Meija (discussed here) that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make that sentence unreasonable."  But the Second Circuit acknowledged in Liriano-Blanco that it has never decided the question of "whether the district court has the authority to impose a non-Guidelines sentence in response to the fast-track sentencing disparity if it deems such a reduced sentence to be warranted." 

The door is therefore still open in the Second Circuit on fast-track disparity.  And, in light of Rita, Kimbrough and Gall, it seems likely that the Second Circuit would ultimately find (when presented with the question) that a district court is authorized to impose a non-Guidelines sentence based on fast-track disparity, and that such a sentence would be reasonable.

An Unusual Twist On State-Federal Disparity

United States v. Collie, No. 06-1669-cr, 2007 WL 3284065 (2d Cir. Nov. 7, 2007)

As detailed in this post, the Second Circuit seems to have prohibited district court from considering the disparity between state and federal prison terms when deciding whether or not to impose an non-Guidelines sentence.  Collie puts an unusual twist on consideration of state/federal disparity.

Collie was sentenced to 63 months imprisonment for being a felon in possession of a firearm.  On appeal, he argued that this sentence was unreasonable because it was significantly longer than any of the sentences he received for his multiple prior state convictions.

So, let me get this straight: Collie is convicted of a number of state offenses.  He receives sentences for those prison terms that are significantly shorter than the federal prison term he ultimately receives.  He obviously doesn't learn anything from his prior brushes with the law and is now charged with federal offenses.  And he wants the court to impose a shorter sentence because he received shorter state sentences?  Seems Collie has a lot to learn about the American criminal justice system and deterrence.

Consideration Of State/Federal Disparity Prohibited By The Second Circuit?

United States v. Johnson, Docket No. 05-3811-cr (2d Cir. Oct. 10, 2007)

Johnson argued on appeal that, among other things, the district court erred when denying his request for a non-Guidelines sentence because it failed to consider the disparities between federal and state penalties for his offense of conviction.  In response, the Second Circuit noted its previous findings that "the primary purpose of [Section 3553(a)(6)] was to reduce unwarranted sentence disparities nationwide" and that "requiring district courts to reduce a defendant's srentence whenever he might have been subjected to different penalties had he been prosecuted in state court would make federal sentences dependent on the law of the state in which the sentencing court was located, resulting in federal sentencing that would vary from state to state."  The Second Circuit therefore concluded that it could not "say that the District Court erred by declining to adopt an approach that would have decreased sentencing disparities between Johnson and any similarly-situated federal defendant prosecuted in different states."

Does this decision represent an absolute prohibition?  Or is the Second Circuit's phrasing -- that the district court did not err in failing to consider state-federal disparity -- mean that a district court similarly would not err in considering it?  Is the door to state-federal disparity still open (if only a crack)?

Important And Interesting Second Circuit Reversnig Above-Guidelines Sentence

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.