Thursday, March 15, 2007

At Long Last, Circuit Finds Above-Guideline Sentence Unreasonable

United States v. Siindima, Docket No. 06-2245-cr (2d Cir. March 5, 2007)(Sack, Katzmann, Parker). It has long seemed as if reasonableness review in the Second Circuit was a one-way street permantently running in the wrong direction. Bucking the trend, at last, is Sindima. Here, the Court found that a 36-month probation violation sentence was substantively unreasonable, where the guideline sentencing range was 4 to 10 months.

Sindima's saga began in 2003, when he was sentenced to three years' probation on what appears to have been a $9,000 mail fraud. Although both the district court and the appellate court referred to this sentence as a "break," it in fact was a guideline sentence, not a variance, since the guideline sentencing range was 0 to 6 months' imprisonment.

About two years into his term of probation, Sindima engaged in an elaborate check-kiting scheme, for which he was arrested by local authorities, but never prosecuted. Despite the dismissal of those charges, the government filed a violaton petition and, after an evidentiary hearing, the court found him guilty. At an initial sentencing conference, the court indicated that it was considering an upward variance to the statutory maximum of 60 months' imprisonment, although the recommended guideline range was 4 to 10 months' imprisonment. This conference was not transcribed, so there is no record of the court's stated reasons, if any, for a variance.

A few months later, the court sentenced Sindima to 36 months' imprisonment, rejecting both sides' request for a sentence within the guideline range. The court's reason for the sentence was that the defendant had engaged in "egregious conduct" while on probation - a "calculated pattern of fraudulent activity on a repeated basis" that required a lengthy sentence to "deter the defendant from future acts of fraud." The court also accepted mitigating information about Sindima, however - his continued education and good works while on probation - and noted that these were the reasons why it was not imposing the 60-month maximum sentence it had previously contemplated.

On appeal, the circuit reaffirmed its basic approach to reasonableness review, which focuses on the totality of the record. Rather than requiring the reason for the sentence to be more compelling the farther the sentence deviates from the advisory range (citing Ratoballi), the focus is on whether the district court's stated reasons can justify the sentence it imposed, particularly when the sentence is "marginal." Here, the 36-month sentence was clearly "marginal"; 260 percent greater than the 10-month guideline maximum. The court of appeals accordingly found fault with both aspects of the lower court's reasoning.

First, the court found that the stated reasons could not support the sentence. Because this was a sentence on a probation violation, the sentence was supposed to punish the defendant primarily for the breach of trust inherent in that violation; the guidelines instruct that the seriousness of the conduct itself is to be considered only to a limited extent. Here, both of those factors were included in the sentencing commission's recommendation of a 4 to10 month sentence, thus the court's exclusive reliance on the defendant's criminal conduct, a factor "for which the guidelines range was designed to account," could not support a sentence nearly three times greater that the guideline maximum.

The court of appeals was also concerned about the way the district court considered Sindima's personal characteristics. The lower court identified them as reasons not to follow its initial inclination to impose the statutory maximum. But, as the appellate court observed, the "proper starting point" for that analysis should have been the guideline range, and not the statutory maximum.

In the end, the court held that the "present record" did not present sufficiently compelling reasons to support the sentence imposed. It remanded the case for resentencing, and urged the court to provide an adequate statement of reasons, both orally and in the written judgment (which it completely failed to do the first time) to support whatever sentence it selects. The court also, unusually, urged the district court to act within sixty days, presumably because Sindima has been in custody for a long time already.

In the end, while this decision is heartwarming, it is also, almost certainly anomalous. Its reasoning is so specifically tied to the particular issues surrounding violation sentences that it is unlikely to be of much help in cases involving appeals from the original sentence.


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