Tuesday, April 04, 2006

Crosby Redux: Circuit Clarifies Some Important Post-Booker Issues

United States v. Mayra Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (Miner, Cabranes, Curtin (by desig'n)): This important decision settles some lingering uncertainties concerning post-Booker appellate review of sentences in this Circuit. Some of the Court's conclusions are good from a defense perspective, some not so good. But there's a benefit to clarity all the same.

First, the Court finally explicitly holds that it possesses statutory authority to review the reasonableness of any sentence, even those falling within a properly calculated Guidelines range. (Fernandez received a sentence of 151 months, the bottom of the correctly calculated range). The Court explains that when a defendant challenges a sentence on appeal as unreasonable (either as to the process of its selection or as to its length), s/he "effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was 'imposed in violation of law,'" under 18 U.S.C. § 3742(a)(1). Op. 10. The Circuit's authority to hear the appeal thus derives from this statute. Id.

Second, the Circuit explicitly "decline[s] to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable." Op. 12. This refusal arises from Crosby, in which the Court "expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness." Id. (citing Crosby, 397 F.3d at 115).

Unfortunately, what Judge Cabranes giveth, he also taketh away. Despite the Court's express refusal to adopt any presumptions on appellate review, and despite the laudatory sentiment that "the record as a whole [must be examined] to determine whether a sentence is reasonable in a specific case," Op. 13 (emphasis added), the opinion sneaks in some very bad, contrary language.

To begin, it repeats dicta from Rubenstein that "the Guidelines range should serve as 'a benchmark or a point of reference or departure." Op. 13 (quoting Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005). Along similarly lines, the opinion remarks in a footnote that "[i]t was not error for [the district judge] to employ the Guidelines range as a starting point and then to determine whether the arguments presented pursuant to the § 3553(a) factors warranted 'lightening' of, or fashioning of an 'alteration to,' the advisory Guidelines sentence (or, in other words, imposing a non-Guidelines sentence)." Op. 23 n.11. But see Op. 22 ("The district court's reference to 'an alteration to a guideline sentence,' standing alone, might be interpreted as a misapprehension that a Guidelines sentence should presumptively be imposed.") (emphasis added). How these sentiments can be squared with the notion that a Guidelines sentence is not to be accorded a presumption of reasonableness, rebuttable or otherwise, is anyone's guess.

Even worse, the opinion also states that "We recognize that in the overwhelming majority of cases, a Guidelines sentence wil fall comfortably within the broad range of sentences that would be reasonable in the particular circumstance." Op. 12. No explanation is offered to justify this assertion; the Court simply assumes this to be true. But given this statement, what's the point of then saying that a Guidelines sentence is not accorded a presumption of reasonableness? Doesn't it amount to the same thing?

Third, the Circuit rejects Fernandez's argument that the district court failed to "consider" one of her arguments for a non-Guidelines sentence (the one based on disparity with a co-defendant's sentence, see infra) because the court did not specifically mention or address this argument at sentencing (though it was raised in Fernandez's written submission). Relying principally on Fleming, 397 F.3d 95, 100 (2d Cir. 2005) , the companion case to Crosby, the Court rejects this argument and holds that it will "presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors." Op. 17.

Of course, a court is still required under § 3553(c) to "state in open court the reasons for its imposition of the particular sentence," and a district court will faciliate the appellate function "by providing complete and detailed explanations regarding their sentencing decisions." Op. 17 n.8. However, quoting Fleming, "As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, [the Circuit] will accept that the requisite consideration has occurred." Fleming, 397 F.3d at 100.

Fourth, the Circuit leaves open the question of whether a disparity between the sentence received by the defendant and a co-defendant can constitute an "unwarranted disparity" within the meaning of 18 U.S.C. § 3553(a)(6), and thus possibly justify a non-Guidelines sentence. Op. 19-20. This is actually quite a good outcome, since the Circuit in pre-Booker days explicitly barred departures based on disparities with a co-defendant's sentence, on the ground that the disparities referred to in (a)(6) concerned nationwide disparities, not disparities in any particular case. E.g., United States v. Tejada, 146 F.3d 84, 87 (2d Cir. 1998); Op. 19 n.9.

The Court concludes that it need not resolve this question here because Fernandez and her co-defendant (who also received a Guidelines sentence, but of only 135 months) were not similarly situated. Among other things, the co-defendant pleaded guilty and thus received a 3-level acceptance reduction (Fernandez was convicted at trial), and also qualified for the safety valve (Fernandez did not). Op. 20.

Fifth, the Court clarifies that "the requirement that a sentencing judge consider an 18 U.S.C. § 3553(a) factor is not synonymous with a requirement that the factor be given determinative or dispositive weight in the particular case, inasmuch as it is only one of several factors that must be weighted and balanced by the sentencing judge." Op. 20 (emphasis in original). "The weight to be afforded any given argument made pursuant to one of the § 3553(a) factors is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented." Op. 21; accord Op. 23 ("[T]he requirement that the sentencing judge consider a § 3553(a) factor that may cut in a defendant's favor does not bestow on the defendant an entitlement to receive any particular 'credit' under that factor. . . . [So long as the ultimate sentence is reasonable,] we will not second guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that factor.").

Finally, the Court holds that even where the Government has not filed a § 5K1.1 motion based on a defendant's cooperation, a sentencing judge must still consider the circumstances underlying the defendant's (ultimately unsuccessful) efforts to cooperate in determining an appropriate sentence. Op. 21-22. The Court relied on § 3553(a)(1) (requiring court to consider "the history and characteristics of the defendant") for this conclusion: This "sweeping provision" is "worded broadly," "contains no express limitations as to what 'history and characteristics of the defendant' are relevant," and requires consideration of "the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion" under § 5K1.1. Op. 22; see id. (§ 3553(a)(1)'s "sweeping" language "presumably includes the history of a defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation."). Unfortunately, this did not help Fernandez, since the relevant facts support the district court's refusal to impose a non-Guidelines sentence based on Fernandez's half-hearted and incomplete efforts to cooperate.


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