Tuesday, November 28, 2006

District Court Must Impose Below-the-Range Sentence If It Finds that Such a Sentence Serves the Ends of Sentencing as Well as a Guidelines Sentence

United States v. Ministro-Tapia, Docket No. 05-5101-cr (2d Cir. Nov. 28, 2006) (Walker, Leval, Raggi): The Parsimony Clause is alive in the Second Circuit! See 18 U.S.C. § 3553(a) ("The district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)]."). Though Mr. Ministro-Tapia loses his appeal challenging his bottom-of-the-Guidelines-range sentence, the Court's opinion represents a great win for criminal defendants generally. (Disclosure: Phil Weinstein of this Office represents Mr. Ministro-Tapia on appeal). While ultimately rejecting the defendant's argument that the district court violated the parsimony command by imposing a Guidelines sentence when a below-the-range sentence would have advanced the ends of sentencing equally well, the Circuit unequivocally rules that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher" one. Op. 10; see also id. (where a Guidelines sentence is "in equipoise with [a] below-the-range sentence," parsimony clause requires imposition of the lower sentence). All practitioners should cite this passage in future sentencing memoranda to district courts.

The Court nonetheless affirms Mr. Ministro-Tapia's sentence because (1) counsel below did not explicitly invoke the parsimony clause at sentencing, seeking instead a "reasonable" sentence below the Guidelines range, Op. 8-9; and because in any event (2) "[t]he sentencing record, viewed as a whole, does not convincingly demonstrate that the district court in fact viewed the Guidelines sentence that it selected as in equipoise with the below-the-range sentence that the defendant sought." Op. 10 (citing passages in record suggesting that sentencing court did not truly believe that a non-Guidelines sentence was "adequate"). The latter explanation is particularly troublesome, since the district judge herself stated when imposing sentence:

"All in all, I could make an argument for a guidelines sentence. I could make an argument for a nonguideline[s] sentence. And where it's six of one and half dozen of the other, I believe that the best course of action is to come down on the side of the guidelines, and I will impose a guideline[s] sentence."

Op. 7 (emphasis added). Nonetheless, despite the Court's erroneous refusal to apply the parsimony command to the facts of this particular case, this opinion is a clarion call to district courts to impose in each case the lowest sentence necessary to achieve the ends of sentencing.


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