Tuesday, October 16, 2007

Location, Location, Location

United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)

Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for imposing a non-Guideline sentence. Confusingly, both attempts have been in this same case.

The first opinion here, back in June, held unequivocally that a district court’s “reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered [the] sentence unreasonable.” This opinion held that it was always inappropriate to use “community-specific” considerations as the basis for deviating from the Guidelines, because such sentences would lead to unwarranted regional disparities in sentencing. Judge Calabresi concurred in the result, but disagreed with the majority’s analysis, rejecting the “broad language . . . that denies the possibility of any consideration of geographic factors” in sentencing. He went on to decry the “false dichotomy” between sentencing factors that relate to individual culpability and those that do not, calling it a “legal fiction.” He suggested that it would be “permissible” for a court to conclude that “taking into consideration all the circumstances of the particular crime, including geography, the sentence should be enhanced.”

And now we have a new opinion to replace the one from June. It should first be noted, however, that the court has not done a particularly good job of explaining itself. A footnote reveals that the June opinion “prompted comments from several members of the Court,” without saying what the comments were. Well, whatever they were, they were sufficient to prompt the panel to withdraw both the June opinion and Judge Calabresi’s concurrence and try again.

The new opinion seems to have embraced, to a much greater degree, Judge Calbresi’s view. It definitely leaves open the possibility that, in some circumstances, findings about the characteristics of the location of the offense could legitimately affect the sentence, at least if those findings are tied to something specific about the case. The new opinion is more nuanced than that of the June opinion. It holds that under the “circumstances of this case” the reliance on location specific factors was error because the district court made “no reference to any characteristic particular to the defendant or his crime” and relied instead “entirely on circumstances common to all defendants charged with gun trafficking in New York and similar large cities.” Just to make the point clear, the court says the same thing again, about four pages later, too. It even drops a couple of footnotes on this issue: one that expressly holds, contrary to the June opinion, that it is not true that a court may “never consider characteristics of the locality” in deciding the seriousness of a crime, and another that gives an example of one type of argument that might support a location-based variance.

So where does this leave us? Well, pretty much where we already were. The court of appeals clearly prefers sentences that are based on particular findings that relate to the individual defendant and his offense, and it continues to be skeptical of categorical sentencing decisions. One interesting side-bar to this case relates to the still unresolved issue of state-federal sentencing disparities, which are clearly “location based.” So far, the court has held that a district judge is not required to consider them, but has not yet decided whether a district court is permitted to do so. When the court finally gets to that question, this case will clearly weigh heavily in its decision.

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