Home
Reasonableness Review
United States v. Melvin, No. 09-2839-cr (2d Cir. May 27, 2010) (found here) If you really want to know what the Second Circuit thinks of reasonableness review, please consider the following two quotations. I'm not saying that the Second Circuit would never find a sentence to be substantively unreasonable. Indeed, it recently did so in United States v. Dorvee (discussed here). Still, the following two quotations are an indication of how difficult the substantive unreasonableness battle is, particularly when challenging a Guidelines sentence: "We will rarely identify substantive unreasonableness in a Guidelines sentence."
"Still less are we likely to conclude that a below-Guidelines sentence is substantively unreasonable under the parsimony clause."
United States v. Dorvee, Docket No. 09-0648-cr (2d Cir. May 11, 2010) (found here) In what amounts to a rare circumstance, the Second Circuit found that a 240 month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography was substantively unreasonable. (The Second Circuit also found the sentence procedurally unreasonable because of an error in the calculation of the defendant's advisory Guidelines offense level.) More specifically, the Second Circuit found the sentence substantively unreasonable for the following reasons. First, the court was "troubled by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived 'need to protect the public from further crimes of the defendant.'" This assumption caused the district court to place undue weight on this sentencing factor. Second, the district court's "cursory explanation of its deterrence rationale ignored the parsimony clause." Specifically, the "district court provided no reason why the maximum sentence of incarceration was required to deter Dorvee and offenders with similar history and characteristics." Moreover, the district court "offered no clear reason why the maximum available sentence, as opposed to some lower sentence, was required to deter an offender like Dorvee." Finally, the Second Circuit was also "troubled that the district court seems to have considered it a foregone conclusion that the statutory maximum sentence 'probably [would] be upheld' on appeal, apparently because it concluded that its sentence was 'relatively far below' the initial Guidelines calculation of 262 to 327 months." The facts of Dorvee may make its substantive unreasonableness determination limited. Indeed, the Second Circuit recognized that the district court's errors "were compounded by the fact that the district court was working with a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what 3553 requires." Still, it is worth reading (and relying upon) because it provides a road-map and insight to those who are arguing substantive unreasonableness on appeal, particularly as regards the Second Circuit's references to the parsimony clause. It's well worth checking out in full.
United States v. Hernandez, Docket No. 09-1421-cr, 2010 WL 1780364 (2d Cir. May 5, 2010) Remember United States v. Ray? That was the case in which the Second Circuit declared that a fifteen year delay in re-sentencing violated a defendant's right to speedy sentencing. Hernandez is similar in that there was also a fifteen year delay between a remand for re-sentencing and the actual re-sentencing. In reversing and remanding for re-sentencing yet again, though, the Second Circuit did not rely on Ray and the speedy sentencing principle (perhaps because Ray was decided after briefing on Hernandez's appeal). Rather, it relied on the district court's procedural error in failing to consider Hernandez's intervening rehabilitation (and took the unusual step of remanding the matter to a different district court judge for re-sentencing). As described by the Second Circuit: Defendant-appellant Hector Hernandez appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, J.) in 2009, which re-imposed a 405-month sentence of incarceration after remand from this Court back in 1993. The record indicates that the district court evidently started with an assumption -- invalid after so long an interval -- that the baseline for the re-sentencing was the sentence imposed in 1991, and thereby failed to properly consider the factors set out in 18 U.S.C. § 3553(a) -- particularly Hernandez's submission of evidence of rehabilitation -- at the time of re-sentencing. Accordingly, we vacate and remand for re-sentencing before a different district court judge.
United States v. Dugan, No. 09-1111-cr (2d Cir. April 22, 2010) (found here) As noted in this blog's discussion of United States v. Gonzalez, No. 09-1285-cr (2d Cir. April 6,
2010) (which can be found here) and United States v. Cavera, 550 F.3d 180 (2d Cir. 2008), there is a relationship between procedural and substantive reasonableness review. The Cavera court noted that it will set aside a district court's substantive determination only in
exception cases where the trial court's decision cannot be located
within the range of permissible decisions. But it also explained that
this this "degree of deference is only warranted" when the Second Circuit
is "satisfied that the district court complied with the Sentencing
Reform Act's procedural requirements." And the Gonzalez court found that "If we determine that the sentence is procedurally reasonable, we then
turn to its substantive unreasonableness." The developing relationship is confirmed -- I believe -- by one line in Dugan, in which the Second Circuit states that: "The substantive reasonableness of the defendant's sentence is reinforced by our further conclusion that, in the absence of any evidence to the contrary, the defendant's sentence is not procedurally unreasonable." Is my theory correct here?
United States v. Gonzalez, No. 09-1285-cr (2d Cir. April 6, 2010) (found here) Is there a relationship between procedural reasonableness and substantive reasonableness? And, if so, what are the contours of that relationship? Gonzalez confirmed for me what I believed the relationship to be -- a belief founded on a reading of United States v. Cavera, 550 F.3d 180 (2d Cir. 2008). In Cavera, the Second Circuit found that it will set aside a district court's substantive determination only in exception cases where the trial court's decision cannot be located within the range of permissible decisions. But it also explained that this his "degree of deference is only warranted" when the Second Circuit is "satisfied that the district court complied with the Sentencing Reform Act's procedural requirements." Thus, I have posited that if a district court commits procedural error at sentencing, arguments concerning substantive unreasonableness are better positioned to succeed and have a stronger posture because they are not entitled to the level of deference typically accorded district court sentencing decisions wherein there is no procedural error. Put differently, review for substantive reasonableness is highly deferential. But that level of deference is diminished if the sentencing court committed procedural error. In a single line in Gonzalez, my theory has (I think) been confirmed: "If we determine that the sentence is procedurally reasonable, we then turn to its substantive unreasonableness." I believe that the Second Circuit is essentially saying that it never reaches substantive reasonableness review if it first finds a sentence procedurally unreasonable. And that makes sense. But there still is no reason not to make both procedural and substantive reasonableness arguments. Even if a reviewing court finds a sentence procedurally reasonable, it still might find it substantively unreasonableness based on the bleed-over effects of the procedural reasonableness arguments (even if they haven't prevailed).
United States v. Mercado, No. 09-1283-cr (2d Cir. March 25, 2010) (found here) Among other things, Mercado argued that the district court erred in sentencing him for a supervised release violation because it failed to articulate its reasons for the sentence imposed. And the Second Circuit agreed -- sort-of. Specifically, it found that "the district court, in imposing a one-year term of imprisonment, did not explain its reasons for doing so except to note that this was the term recommended by the Probation Office." However, as the Second Circuit explained in United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curium): Establishing that a sentencing court failed to fulfil the "open court" requirement is not . . . tantamount to plain error. . . . [F]ailure to satisfy the open court requirement of § 3553(c) . . . does not constitute "plain error" if the district court relies on the PSR, and the factual findings in the PSR are adequate to support the sentence.
The rule applies equally to sentencing for violations of supervised release. The lesson to learn is to examine sentencing transcripts carefully on appeal. If no mention is made of the reason for the sentence imposed, it might well prove fertile ground for appeal.
United States v. Ull, No. 09-0713-cr (2d Cir. March 24, 2010) (found here) It's not always clear what substantive reasonableness review means, other than that the Second Circuit patrols the outer boundaries of sentences and largely defers to the judgment of the district court. In Ull, we get a little more of a taste of what that substantive review entails. Specifically, Ull challenged the substantive reasonableness of the sentence imposed, which was below the range of imprisonment recommended by the advisory Guidelines. In discussing that challenge, the Second Circuit stated as follows: Nor was the sentence substantively unreasonable. The district court appropriately took into account the severity of Ull's conduct, the extent of the harm inflicted on the victims, and the fact that -- despite the evidence of Ull's mental illness -- there was no evidence whatever that she lacked the capacity to control her behavior. The sentence explicitly balanced an understanding that the defendant's mental illness contributed to her offense, with the need for promoting respect for the law, providing just punishment, deterring defendant and others from committing similar offenses in the future, and protecting the public from further criminality.
So, is substantive reasonableness review really just a balancing test? And, if so, what are the criteria for that test?
United States v. Gilmore, Docket No. 07-0349-cr (2d Cir. March 17, 2010) (found here) Well, Gilmore did NOT answer the question that "remains open" in the Second Circuit with regard to the ex post facto clause -- to wit, whether transformation of the Sentencing Guidelines from a mandatory regime to one that is purely advisory affects the ex post facto consequences of relying on a later-enacted version of the Guidelines. But the Second Circuit came a little closer to answering that question when it found that the district court in Gilmore did not err and did not violate the ex post facto clause when it calculated and considered a sentence under the version of the Guidelines in effect at the time of the offense, but referred to a subsequent (and harsher) version of the Guidelines as indicative of the seriousness of the offense and the reasonableness of a non-Guidelines sentence. One additional note: As practitioners in the Second Circuit know, the Government takes the position that the ex post facto clause is no longer an issue with regard to the Guidelines because they are now advisory rather than mandatory. In Gilmore, however, the Government initially joined in Gilmore's request for resentencing based on an ex post facto violation. But it subsequently submitted a letter advising the Second Circuit that it had changed its opinion, and that it believed that the ex post facto clause does not apply to the Guidelines. For more on the application of the ex post facto clause to the Guidelines, check out my July 1, 2009 article in the New York Law Journal entitled "The Ex Post Facto Clause in the Post-Booker World," which can be accessed here.
United States v. Davis, Docket No. 08-3240-cr (2d Cir. March 15, 2010) (found here) Davis appealed his 97 month sentence, arguing that it was both procedurally and substantively unreasonable. Rather than file a substantive response, the Government filed a motion to summarily affirm the sentence, arguing that the grounds upon which Davis based his appeal were frivolous. The Second Circuit rejected the Government's arguments, and allowed Davis' appeal to proceed. Initially, it expressed no opinion on the merits of Davis' arguments concerning the procedural reasonableness of his sentence, other than to note that it "rest[s] on neither fanciful allegations of fact nor inarguable assertions of law." The Second Circuit's "central point" was that it would no view concerning procedural reasonableness "without completion of the appeal process." More interesting is the Second Circuit's views on Davis' substantive unreasonableness argument. It acknowledged the strong deference it employs in reviewing district court sentences as well as its deferential abuse-of-discretion standard. But it went on to say that "[s]trong deference to a district court's decision is not an invitation to rush to characterize an appeal from it as frivolous." In other words (in my view), few sentences may be reversed for substantive unreasonableness, but the Second Circuit has an open mind to such arguments, and views itself as having an obligation to continue to patrol the boundaries of reasonableness.
United States v. Tyson, No. 08-5477-cr (2d Cir. March 15, 2010) (found here) Just a quick note. Tyson challenged his 65 year sentence, which resulted from the stacking of sentences for various offenses of conviction. On appeal, the Second Circuit found the sentence to be substantively reasonable even though it amounted to a life sentenced primarily because: (1) it defers heavily to district courts, who are largely responsible for determining sentence; and (2) the district court gave explicit reasons for the sentence imposed and the stacking.
|
Government Resources
Statutes, Rules & Regulations
Organizations
Law-Related Blogs
Other Resources
|