Tuesday, December 06, 2005

Reasonableness Standard Governs Appellate Review of Upward Departure in Length of Supervised Release Term

United States v. Avello-Alvarez, Docket No. 05-0638-cr (2d Cir. Dec. 6, 2005) (Sotomayor, Katzmann, Eaton (by designation)): This short opinion principally confirms that the law governing appellate review of upward departures in the length of the term of supervised release remains unchanged in light of Booker: Before and after that decision, the Circuit reviews such departures for reasonableness. The Court notes additionally, as it did in Crosby and Selioutsky, that "reasonableness has substantive and procedural dimensions," and thus that the Court will review "both the length of the sentence as well as whether the district court treated the Sentencing Guidelines as advisory and considered the applicable Guidelines range and the factors listed in ยง 3553(a)." Op. at 3.

Here, the district judge upwardly departed (presumably from a range of 3 to 5 years) and imposed a 7-year term of supervised release, citing among other things defendant's "recidivism, mental health needs, and substance abuse problems." Op. at 4. Unfortunately, the Circuit had no occasion to consider the "substantive" reasonableness of the sentence, since the only argument raised on appeal was whether the 7-year term was unreasonable because it was higher than the 3-year term recommended by the Probation Office. The Circuit appropriately gave short shrift to this odd argument. Id.

2 Comments:

Blogger Bernie Kleinman said...

As an attorney familiar with this case, the sentence was not challenged as Mr. A-A was sentenced to less than the Guideline range. Did not think it advisable to challenge tot hisd apsect of the case and give the US Attorney the opporunity to challenge the downward departure.

December 8, 2005 at 2:18 PM  
Anonymous Anonymous said...

Bernie - Did the U.S. even challenge it at the DCt level? If not, then defense needs to challenge it on appeal.

It's not a civil appeal, it's criminal - appellate courts realize this aspect of "meritless" appeals with different standards in criminal v. civil.

This only opens up an IAC claim.

December 5, 2006 at 9:34 PM  

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