United States v. Kane, Docket No. 05-2714-cr (2d Cir. June 19, 2006)
Kane plead guilty to one count of equity skimming in violation of 12 U.S.C. 1709-2. Despite an advisory Guidelines range of 30 to 37 months, the district court sentenced Kane to a non-Guidelines sentence of 24 months. On appeal, Kane asserted that his 24 month sentence was still unreasonable. In what can only be described as an interesting turn of events, the Government argued that Kane's below Guidelines sentence was reasonable. (The Government initially argued that the Second Circuit lacked jurisdiction to consider the reasonableness of Kane's sentence, an argument that was rejected based on Fernandez.) In conducting its reasonableness review and in contrast to Rabbotalli, the Second Circuit held true to Fernandez in finding that reasonableness review:
"does not entail the substitution of our judgment for that of the sentencing judge. Rather, the standard is akin to abuse of discretion. We ask only 'whether the sentencing judge exceeded the bounds of allowable discretion, committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact. The District Court committed no such error here. The Judge considered the relevant sentencing factors in careful and reasoned fashion, premised his conclusions on a sound view of the facts, and understood the applicable legal principles. Kane merely renews the arguments he advanced below -- his age, poor health, and history of good works -- and asks is to substitute our judgment for that of the District Court, which, of course, we cannot do."
How is this below Guidelines sentence any different than the below Guidelines sentence at issue in Rattoballi? (Other than the fact that Kane sought an even lower sentence than the non-Guidelines sentence that he received and Rattoballi sought only to preserve the non-Guidelines sentence that he received.) And, absent a difference, what accounts for the different analysis?
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