Sunday, June 10, 2007

District Court's Reliance on Community-Specific Considerations Renders Non-Guideline Sentence Unreasonable

United States v. Cavera, Docket No. 05-4591-cr (2d Cir. June 6, 2007) (Cardamone, Calabresi, Pooler, C.JJ.). Here, both the government and the defendant argued that an above-Guideline sentence was unreasonable. The Court agreed, and vacated the sentence.

Facts: The facts of this case are fairly straightforward. The defendant was arrested in the midst of a scheme in which guns were purchased in Florida, then transported to New York for sale. He pled guilty to one count of conspiracy, and faced a Guideline sentencing range of twelve to eighteen months' imprisonment. Judge Sifton, however, imposed a twenty-four months sentence, finding that gun trafficking in urban areas like New York City requires a greater degree of punishment.

Ruling: The Court of Appeals made short work of the district court's reasoning, holding that "community-specific" considerations cannot support a non-Guideline sentence because injecting regional and local factors into a sentencing results in unwarranted geographic sentencing disparities.

Judge Sifton had likened his reasoning to that behind "fast-track" programs, in which illegal reentry defendants in certain areas receive a reduced sentence in exchange for their waiver of certain rights. But the Court of Appeals noted that Congress participated in the establishment and regulation of fast-track programs, ensuring that they do not undermine the statutory goals of sentencing. This is quite different than a federal court, "acting unilaterally," which is not in a position to assess national costs and benefits.

Judge Sifton also indicated that he was acting explicitly under 18 U.S.C. § 3553(a)(2), which directs that the sentence reflect the seriousness of the offense and the need for deterrence. But the facts here, according to the Court, were not of the kind properly considered under this section, because they were not particular to the individual defendant. "[C]ourts may not sentence on the basis of facts that apply to whole classes of crimes."

Comment: The Court's reaffirmance of its view that Booker and § 3553(a) require individualized sentencing and do not permit the district court to inject its own policy preferences into the process is not surprising, and nothing new.

It is Judge Calabresi's concurring opinion that is of some interest, however. He posits that the line between "categorical factors," which cannot serve as the basis for a non-Guideline sentence, and "individual factors," which can, is "logically questionable." Judge Calabresi notes that a court can always take into consideration the "nature of the victim" in setting a sentence, and that the locality where a crime has been committed is highly similar to this. It affects the harm caused by the offense, the culpability of the offender, and the effectiveness of a given deterrent. He goes on to give some fairly compelling examples of this type of reasoning. In the end, he concurs in the result here, if not the reasoning, because he is uncertain whether the district court's reasoning was based on "sufficiently objective" geographical considerations or "intuitions and hunches."

One can surmise that, if Judge Calabresi has his way, this issue might resurface some day, in a way that would not benefit New York City defendants. After all, it is hard to think of a commonly prosecuted federal offense that would appear to be less serious in an urban setting than elsewhere.


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