Is The Second Circuit's Reasonableness Review Reasonable?

United States v. Tupin, Docket No. 05-2934-cr., 2007 WL 162710 (2d Cir. Jan. 23, 2007) (found here)

Generally speaking, the Second Circuit has taken a hands-off approach on substantive reasonableness review.  So long as a district court considers the Section 3553(a) factors and the advisory Guidelines -- and says that it did -- the Second Circuit has generally found that sentences are substantively reasonable.

No so much in Tupin.  Tupin had an advisory Guidelines range of 41 to 51 months imprisonment.  The district court, however, sentenced him to 7 months imprisonment and 7 months home detention.  On appeal by the Government, the Second Circuit reversed.  Contrary to its otherwise deferential approach, the Second Circuit found the sentence to be substantively unreasonable.  In a word, the Second Circuit second-guessed the district court -- "Although the district court considered the section 3553(a) factors as required by Booker, it erred in its conclusion."  Specifically, the Second Circuit found that the district court had placed unjustified reliance on certain factors (Tupin's age and family circumstances) and:

to the extent that the district court gave undue weight to considerations not unique to the defendant, relied upon an improper factor, or substituted personal views for the Commission's policies, that too was error.

Tupin is important because it shows the Second Circuit's willingness to meddle in substantive sentencing decisions and play the role of the district court when a sentence varies significantly from the Guidelines -- a role at tension with its otherwise consistent position of deference.  Tupin's relevance, however, likely will be short lived because the issue of the scope of reasonableness review is currently before U.S. Supreme Court in Clairbourne and Rita. 

For more commentary on Tupin, check out the Second Circuit Blog here, Second Opinions here and Sentencing Law and Policy here.