Circuit Excises Section 3553(b)(2) in Light of Booker, and Will Review Departure Decisions under Abuse of Discretion Standard

United States v. Selioutsky, Docket No. 04-2740 , (2d Cir. May 27, 2005) (Newman, Wesley, Hall) (Op. by Newman): This is yet another opinion by Judge Newman fleshing out some important details of the post-Booker sentencing (and appellate) world left unresolved by Booker itself. In this case, the Circuit (1) excises Section 3553(b)(2), which required mandatory application of the Guidelines, except for a few very narrow departure grounds, in child pornography and other sex offense cases; and (2) holds that it will review departure decisions by district courts under the pre-PROTECT Act standard of review -- abuse of discretion. Additionally, the Court clarifies that although Booker implements a general standard of reasonableness in evaluating the propriety of a sentence on appeal, the Court will review legal questions leading to the imposition of that sentence de novo, questions of fact under the clearly erroneous standard, and mixed questions of law and fact under either the de novo standard or the clearly erroneous standard depending on whether the question is more legal or more factual (citing Vasquez, 389 F.3d 65 (2d Cir. 2004)). Finally, the Court also continues its trend -- beginning with Rubenstein -- of evaluating whether the district court properly determined the advisory Guidelines range (including departures), and of remanding for resentencing when it determines that that range was improperly calculated (again including departures) -- even while paying lip service to the rule that a sentence may be upheld as reasonable even where the Guidelines range was improperly calculated. Nonetheless, the Court admitted that even where an error led to the imposition of the final sentence, it may affirm that sentence if the record shows that (1) the district court would have imposed the same sentence absent the error, and (2) the sentence itself is reasonable.

The essential facts are very simple. Defendant pled guilty to possessing child pornography and faced a Guidelines sentence of 60 months (because the range of 70 to 87 months exceeded the 5-year statutory maximum). He sought a downward departure at the pre-Booker sentencing on the basis of exceptional family circumstances -- defendant lived with and provided some unspecified financial support to his elderly parents, one of whom was scheduled to have surgery soon. Although defendant had a brother in Pennsylvania, the record does not indicate whether that brother would have assisted their elderly parents if defendant were incarcerated. The record also showed some uncertainty about whether defendant intended to move to Florida to rejoin his own family even if he were not incarcerated.

Despite these uncertainties and a relatively weak record, the district court departed downward and imposed a 30-month sentence. The Government appealed.

The first question faced by the Court was whether Section 3553(b)(2) survives Booker. This Section requires sentencing courts to impose a sentence within the Guidelines range in all child sex offense and other similar cases, absent facts warranting a departure specified by the Guidelines. Booker of course excised Section 3553(b)(1), which also generally required a district court to impose a sentence within the Guidelines range absent a departure, but did not address the continuing viability of its sister provision for the simple reason that neither Booker nor Fanfan had been convicted of a child sex offense.

The Circuit disposed of this question quickly, concluding that the same rationale that led to Section 3553(b)(1)'s excision in Booker -- i.e., mandatory Guidelines violate the Sixth Amendment -- yields the same result for Section 3553(b)(2). Importantly, the Circuit ruled that Section 3553(b)(2) was invalid in its entirety, and not simply in its requirement of a Guidelines sentence. Op. at footnote 6. Therefore, in determining whether to depart downward in a child sex offense case, a district court is no longer constrained by the narrow grounds specified in Section 3553(b)(2), and may depart on any ground justifying a departure in any other case.

The Court went on to discuss the applicable standard of review in evaluating the appropriateness of the downward departure. Although Booker excised Section 3742(e) and replaced it with a standard of "reasonableness," the Circuit explained (citing Crosby) that a sentence may be unreasonable not only as to its length, but also because of procedural errors leading to its imposition. And while the Circuit may overlook any such errors and proceed to the ultimate question of whether the sentence imposed is reasonable or unreasonable (regardless of any errors), it may also notice any such errors and remand for resentencing without such errors instead. As the Court explained, such errors "could render a sentence unreasonable under Booker."

The Court clarified that in performing its appellate function of reviewing such "procedural errors" in sentencing, it will be governed by the same standards that it used before Booker. Thus, legal questions will be reviewed de novo, factual determinations will be reviewed under the clearly erroneous standard, and mixed questions of law and fact will be evaluated under either the de novo standard or the clearly erroneous standard depending on the nature of the question presented (following the procedure outlined by Vasquez, cited above). And as for departure determinations, the Court ruled -- citing Koon for support -- that it will use the pre-PROTECT Act standard of review: Abuse of discretion.

Applying that standard, the Court concluded that the departure was not warranted and remanded the case for further fact finding. Specifically, the Court required the district court to determine on remand whether (1) defendant's brother would be available to care for the parents were defendant incarcerated, and (2) defendant actually intended to remain with the parents in Brooklyn (rather than move to Florida to join his own family) were he not incarcerated.

Finally, the Court addressed the possibility that the sentencing court may have imposed the same 30-month sentence even absent the erroneous departure as a "non-Guidelines" (or variance) sentence after Booker. See foonote 7. If the record supported such a finding on appeal, and if the Circuit determined that a 30-month sentence was not unreasonable, any error in departing would be deemed harmless. However, because the record did not clearly demonstrate that the court would have imposed the same sentence absent the departure (it was a pre-Booker sentencing, after all), remand was required.