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.

National Sentencing Statistics Not Relevant At Sentencing?

United States v. Ganim, No. 03-1448-cr (2d Cir. Dec. 4, 2007) (found here)

Ganim argued on appeal that, on remand, the district court erred in not reducing his 108 month Guidelines sentence "in light of the statistics he presented on national average federal bribery statistics."  The Second Circuit rejected the argument, finding that the statistics Ganim presented gave no indication they pertained to "similarly situated" individuals, as is required by 18 U.S.C. 3553(a)(6).  Ganim was, in fact, convicted of a whole host of public corruption-related offenses.  How could the national averages he presented not have been relevant?

Second Circuit Explains How District Court Went Too Far In Considering Section 3553(a) Factors

United States v. Cavera, Docket Nos. 05-4591-cr(L), 05-5210(CON) (2d Cir.  Oct. 11, 2007)

The district court imposed a non-Guidelines sentence higher than that called for by the Guidelines for a multiple-count weapons conviction based on Section 3553(a)(2) (which directs the district court to consider the seriousness of the offense and the need for deterrence).  It reasoned that the seriousness of the offense and the need for deterrence in an urban environment like New York City required a heavier sentence.  Cavera appealed, and the Government conceded the sentencing error.  But that doesn't mean that the Second Circuit didn't take the case seriously.  Rather, it appointed amicus curiae counsel to brief the position taken by the district court and then issued a twenty page opinion.  Seems to me that the Second Circuit wanted to make a point: Booker is not about individualized sentencing.

And what did the Second Circuit say?  Here are a few choice snippets:

1.  The district court's "demographics-based approach to sentencing [ran] contrary to one of the primary purposes of the Guidelines: to diminish sentencing disparity. . . Put differently, the Guidelines aim to eliminate disparities in sentences meted out by different district courts to defendants who commit similar offenses."

2.  It "seems plain that the district court's formulaic approach threatens to undermine a primary purpose of the Guidelines.  The trial court's reasoning would result in a return to disparate sentences across districts where courts fashion sentences, not on facts unique to defendants' conduct or circumstances, but solely on the urban or rural character of each court's geographic jurisdiction." 

3.  We "hold simply that the district court erred in its analysis under factor (a)(2) by sentencing Cavera on the basis of a policy judgment concerning the gravity of firearms smuggling into a heavily populated area, like New York City, rather than on circumstances particular to the individual defendant and his crime.  The district court's approach effectively defines a separate crime -- gun trafficking in urban environments -- and fixes an above-Guidelines penalty for that crime.  We have cautioned the district courts against misapplying their sentencing authority to make policy decisions relating to an entire class of offenses."  Think crack-powder disparity . . .

4.  "We acknowledge the courts have not drawn a neat line separating proper judicial consideration of a defendant and his crime from impermissible policy judgment concerning a genre of offenses, and examples may be found that blur the distinction.  But the logic underlying Cavera's sentence presents no such challenge."  Simply put, the district court went too far.

5.  "That the district court improperly injected its policy views into Cavera's sentence is clear to us, not because its rationale applies to other offenses in the stated genre, but because its rationale depends on characteristics of that genre to determine the gravity of this defendant's crime.

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.

Interesting Co-Defendant Disparity Issue

United States v. Fearon-Hales, No. 05-5999-cr (2d Cir. May 21, 2007) (found here)

Fearon-Hales appealed a 151 month Guidelines sentence following her conviction for a narcotics offense arguing (among other things)that her "two accomplices received lower sentences in Germany."  After noting that "[o]ne goal of the Sentencing Guidelines is to reduce unwarranted sentence disparities among federal defendants 'with similar records who have been found guilty of similar conduct,'" the Second Circuit found that the disparities between the sentences imposed on Fearon-Hales and her accomplices in Germany were not unwarranted because her accomplices: (1) were sentenced in Germany pursuant to German criminal law; (2) were couriers and she was a supervisor; and (3) cooperated with the Government while she did not.  (It would be interesting to know what sentences were imposed on her German co-conspirators -- The Second Circuit did not say.)

The Second Circuit -- relying on its pre-Booker decision in United States v. Joyner, 924 F.2d 454 (2d Cir. 1991) -- went on to note, however, that "we have held that the desire to avoid disparate sentences for co-conspirators is not a permissible basis for a departure because it would necessarily undermine national uniformity."  The Second Circuit, however, necessarily did not rule out imposition of a non-Guidelines sentence (as opposed to a departure) on this basis.

For an extended discussion of this issue, check out my New York Law Journal article entitled "Co-Defendant Disparity as a Basis for a Non-Guidelines Sentence" (found here).

Two Different Views On State-Federal Disparity

United States v. Santiago, Criminal No. 3:02CR162 (SRU), 2007 WL 1238610 (D. Conn. April 24, 2007)

In United States v. Brennan (discussed here), Judge Weinstein of the United States District Court for the Eastern District of New York based consideration of state-federal disparity on novel grounds.

Specifically, Judge Weinstein found that from "the point of view of the impact of sentencing on specific and general deterrence and reducing recidivism rates, state-vertical coordination is more important than national-horizontal uniformity.  The public and criminals generally consider the local federal and state courts as part of a single protective institution.  Too great a disparity between state and federal prosecution and sentencing decisions will be seen by the public as creating unjustified disparities.  Section 3553(a)(6) should be construed as covering disparities in state-federal as well as federal-federal comparitive sentencing."

The court in Santiago found differently.  Specifically, it found upon a Crosby remand that:

the disparity in sentences among the federal courts and courts of the various states is not the disparity that the Sentencing Guidelines and 18 U.S.C. § 3553(a) sought to address.  If the federal courts sought to reduce disparity in sentencing with the local state courts, then sentencing disparity within the federal system would be increased; federal courts in states with strict sentencing regimes would impose stiffer sentences than federal courts in states with more lenient regimes.  Both the Sentencing Guidelines and section 3553(a) seek to reduce sentencing disparity among federal courts.  Although Santiago received a harsher sentence in federal court than he would have in state court, that outcome results from the exercise of prosecutorial discretion [i.e., a prosecution by federal rather than state authorities], not from any unfairness in the way he was treated in the federal system.

Two different judges.  Two different views.

And Yet Another Guidelines Sentence Affirmed As Reasonable

United States v. Regaldo-Millares, No. 05-5853-cr (2d Cir. March 30, 2007) (found here)

Regaldo-Millares appealed his 168 month sentence, which was at the low end of his advisory Guidelines range.  First, he argued that he should have received a minor role adjustment.  The Second Circuit rejected the argument, finding that there was sufficient evidence in the record to support the district court's finding that he played more than a minor role.  Second, he argued that his sentence was unreasonable because his minor role in the offense should have been considered by the district court when it considered the "nature and circumstances of the offense."  The Second Circuit rejected this argument too, finding that his role in the offense was reflected by his sentence at the low end of his advisory Guidelines range.  Moreover, the Second Circuit found that he and his co-defendant were not similarly situated and that there was therefore no unwarranted disparity between their sentences.

Mixed Messages From The Second Circuit On Co-Defendant Disparity

United States v. Carabello, No. 05-4293-cr (2d Cir. March 7, 2007) (found here)

In United States v. Wills (discussed here), the Second Circuit stated that "the plain language of 3553(a)(6) does not on its face restrict the kinds of disparity a court may consider" -- such as the disparity between the sentences imposed on co-defendants -- and that "[w]e do not, as a general matter, object to district courts' consideration of similarities and differences among co-defendants when imposing a sentence."

Now comes Carabello, in which the Second Circuit (in a footnote) seems to backtrack some.  Specifically, the Second Circuit noted that "18 U.S.C.§ 3553(a)(6) was created to eliminate sentencing disparity on a national level and it is unclear whether this provision permits co-defendant comparisons." 

Why the seemingly conflicting statements?

Second Circuit Approves Co-Defendant Disparity As A Basis For A Non-Guidelines Sentence . . . Sort Of

United States v. Wills, Docket No. 06-0115-cr (2d Cir. Feb. 5, 2007) (found here)

Wills's statutory minimum was 120 months imprisonment, and his advisory Guidelines range was 292-365 months imprisonment.  The longest sentence imposed on one of Wills's co-defendants was 96 months imprisonment.  Based on the disparity between the sentence Wills faced and those imposed on his co-defendants (as well as other Section 3553(a) factors not discussed here), the district court imposed a sentence of 172 months imprisonment. 

Naturally, the Government appealed, arguing that the district court erred by considering co-defendant disparity rather than disparity among defendants nationwide pursuant to 18 U.S.C. § 3553(a)(6).  The Second Circuit rejected the Government's arguments.  Sort of.

Initially, the Second Circuit noted that Section 3553(a)(6) was intended to eliminate national disparity.  The Second Circuit then hedged some, conceding that "the plain language of 3553(a)(6) does not on its face restrict the kinds of disparity a court may consider" -- such as the disparity between the sentences imposed on co-defendants -- and that "[w]e do not, as a general matter, object to district courts' consideration of similarities and differences among co-defendants when imposing a sentence."

Consideration of those "similarities and differences," however, must involve consideration of more than the similarities and differences in the sentences imposed on co-defendants.  Thus and relying on the Third Circuit's work in United States v. Parker, 462 F.3d 273 (3d Cir.), cert. denied, 127 S.Ct. 462 (2006), the Second Circuit directed that so "long as factors considered by the sentencing court are not inconsistent with those listed in 3553(a) and are logically applied to the defendant's circumstances, we accord great deference to the court's broad discretion in imposing a sentence within a statutory range."

So, what does all of this mean?  It basically means that the disparity between the sentences imposed on co-defendants can serve as the basis for a non-Guidelines sentence.  But any analysis leading to that conclusion must be undertaken in the broader context of the factors set forth in Section 3553(a) -- to wit, "it is appropriate for a district court, relying on its unique knowledge of the totality of circumstances of a crime and its participants, to impose a sentence that would better reflect the extent to which the participants in a crime are similarly (or dissimilarly) situated and tailor the sentences accordingly."

So, what did this mean for Wills?  Well, the district court "erred . . . not because he considered Wills's sentence in relation to those of his co-defendants, but because he provided no assessment of how Wills was similarly situated to his co-defendants and why that would matter in light of the differences.  Rather, the judge pointed only to facts showing the Wills was not convicted of conduct similar to that of his co-defendants and otherwise was not similarly situated."

One final note -- An insight into the Second Circuit's thinking as to how narrowly they may intend to interpret co-defendant disparity going forward.  The whole paragraph is quoted here because the whole paragraph is worth reading:

The district court explicitly invoked 3553(a)(6), the primary purpose of which was to minimize nationwide disparities, in reducing Wills's sentence in light of his co-defendants' sentences.  It is not entirely clear what exactly it means for a district judge to consider the effects of an individual defendant's sentence on nationwide disparities.  On the one hand, in order to avoid redundancy with 18 U.S.C. 3553(a)(4), it must require something different than mere consideration of the Guidelines, which are the statute's primary vehicle for reducing nationwide sentence disparities.  On the other hand, it cannot be that a judge must act as social scientist and assess nationwide trends in sentencing with each new defendant -- in effect, intuiting Guidelines revisions on an interim basis as a proxy for the Sentencing Commission.  We think the mandate to take into account nationwide disparities under 3553(a)(6), as distinct from the need to give due weight to the Guidelines under 3553(a)(4), is modest.  Even in fulfilling their primary duty of rendering just sentences with an eye toward the particular circumstances before them, judges must be mindful of the general goal, however elusive, of national consistency.