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Unwarranted Sentence Disparities
United States v. De La Cruz, No. 09-4641-cr, 2010 WL 4136669 (2d Cir. Oct. 21, 2010)
De La Cruz's argued that his sentence was procedurally and substantively unreasonable. In particular, he argued (among other things) that the district court committed procedural error in making the following statement: "The next factor is the Court has to avoid unwarranted sentencing disparity. I would have to say a Guidelines sentence by definition really can't create unwarranted sentencing disparity."
The Second Circuit found that any error on the district court's part in making that statement was harmless, particularly in light of other statements made that indicated the district court understood its sentencing responsibilities and obligations. Still, the Second Circuit made one observation worth noting -- that is, that "Appellant is correct insofar as he asserts that a Guidelines sentence can create an unwarranted disparity, a proposition supported by the Supreme Court's decision in Kimbrough v. United States."
United States v. Ovid, No. 09-CR-216 (JG), 2010 WL 3940724 (E.D.N.Y. Oct. 1, 2010)
Judge Gleeson takes pen to paper again, but selects the fraud guidelines and the DOJ's June 28, 2010 letter to the Sentencing Commission as the target. In sum, Judge Gleeson sentenced a white-collar offender to 60 months imprisonment, notwithstanding an advisory Guidelines range of 210 to 262 months (there was, of course, a 60 month statutory cap). The whole decision is a "must read" for any defense lawyer. Indeed, Judge Gleeson has important things to say about sentencing disparity as well as the role that appellate courts should play in cabining same. But what's perhaps most interesting for defense lawyers is his "Preliminary Statement," which is quoted in full below:
In a letter dated June 28, 2010 to the Chair of the United States Sentencing Commission, the Director of the Office of Policy and Legislation of the United States Department of Justice (“DOJ” or the “Department”) decries the “evolution” of “two distinct and very different sentencing regimes.” Letter from Jonathan J. Wroblewski to the Hon. William K. Sessions III, at 2, 1 (June 28, 2010) (“DOJ Letter”). One “regime,” the letter contends, “includes the cases sentenced by federal judges who continue to impose sentences within the applicable guideline range for most offenders and most offenses.” Id. at 1. This is apparently the good regime. The “second regime,” by contrast, “has largely lost its moorings to the sentencing guidelines.” Id. at 2. This regime is a cause of concern for the Department. It consists of judges who sentence fraud offenders, especially in high-loss cases, “inconsistently and without regard to the federal sentencing guidelines.” Id. at 4. The Department concludes on this issue (the letter addresses various others as well) that “[t]he current sentencing outcomes in [fraud] cases are unacceptable, and the Commission should determine whether some reforms are needed.” Id . at 5. In short, the premise of the letter is that unless the sentences in fraud cases are “moored” to the advisory ranges provided by the United States Sentencing Guidelines, they produce “unwarranted sentencing disparities” that are “extremely problematic.” Id. at 2.
The DOJ Letter recommends, inter alia, a systemic analysis and synthesis by the Commission of the federal sentencing data it has collected, followed by a report that “explore[s] how to create a single sentencing regime that will earn the respect of the vast majority of judges, prosecutors, defense attorneys, Members of Congress, probation officers, and the public.” Id. at 3. It also suggests that “reforms might include amendments to the sentencing guideline for fraud offenses.” Id. at 5.
The Department is an important influence in the formulation of sentencing policy. Jonathan Wroblewski, the author of the letter, is a thoughtful and well-respected expert in the area. Finally, the Attorney General enjoys ex officio membership on the Sentencing Commission, and Mr. Wroblewski is the Attorney General's designee to that post. For all these reasons, the DOJ Letter to the Commission will carry great weight.
The sentencing of Isaac Ovid on July 30, 2010 illustrates well the fact that, here in the trenches where fraud sentences are actually imposed, there is a more nuanced reality than the DOJ Letter suggests. The letter describes two “dichotomous regimes” in fraud cases-one moored to the Guidelines, the other adrift in the vast regions beneath the low end of the advisory Guidelines ranges. Id. at 2. But Ovid's sentencing shows otherwise. Specifically, it shows how the fraud guideline, despite its excessive complexity, still does not account for many of the myriad factors that are properly considered in fashioning just sentences, and indeed no workable guideline could ever do so. This reality does not render the Guidelines irrelevant in fraud cases; they are in fact quite useful in all sentencings. But sentencing judges know that a full consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), implicates offense and offender characteristics that are too numerous and varied, and occur in too many different combinations, to be captured, much less quantified, in the Commission's Guidelines Manual. A consideration of those and the other factors set forth in § 3553(a) produces sentences that are moored to fairness, and to the goals of sentencing set forth in § 3553(a)(2) but sometimes not so much to the advisory Guidelines range. Indeed, in some cases the fair sentence can drift quite far away from the advisory range, which is, after all, but one of eight factors the sentencing judge must consider.
Ovid's sentencing reveals that the Department knows this as well. Aggressive, experienced, successful white collar prosecutors understand that it does not undermine the Sentencing Guidelines at all, much less create some kind of rogue sentencing regime, when the consideration of factors set forth in 18 U.S.C. § 3663(a) produces a sentence that happens to be substantially below the advisory range.
I support the Department's call for Sentencing Commission review of fraud sentences. But in determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed “unacceptable” outcomes the Department complains about. I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution.
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.
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.
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?
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.
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.
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).
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.
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.
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