Sunday, December 07, 2008

Take It To The Banc

United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)

Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two “location specific” concerns. The court held that firearms offenses are more dangerous in densely populated urban environments and that the need for deterrence was greater because New York’s strict gun laws made it one of the few places where gun-running was profitable.

On Cavera’s appeal, a panel of the court vacated the sentence as procedurally unreasonable (the case was blogged here twice, most recently in October 2007 under the title Location, Location, Location). The circuit then took up the case en banc. Although the court divided deeply on some issues, the majority vacated the panel opinion and affirmed the sentence.

The Deterrence Theory

The en banc majority opinion, written by Judge Calabresi, agreed that the district court’s deterrence rationale was a valid basis for an upward variance.

There is “no special reason to think that reliance on a locality-based categorical factor is - without more - suspect.” And, the “existence and enforcement of strict local gun laws in a particular jurisdiction is likely to make the cost of getting a gun in that jurisdiction higher than in a jurisdiction with lax anti-gun laws.” This, in turn, increases “the profits to be had from trafficking guns into the strong-enforcement jurisdiction.” The penalty thus needs to be “correspondingly higher to achieve the same amount of deterrence.” The majority cited “considerable” empirical support for this position, although it noted that, “[l]ike any economic theory,” the point was not without controversy. Nevertheless it was not an abuse of discretion for the district court to rely on this type of reasoning.

Judge Straub dissented, and was joined by Judges Cardamone, Sotomayor and Pooler. Judge Straub argued that it was error for the district court to conclude that, “as a general matter,” greater deterrence was necessary because gun trafficking is more profitable in New York than elsewhere, although there would have been no error if the district court had found that Cavera himself had been motivated by such greater profits.

More importantly, the dissenters disagreed that, as a factual matter, gun trafficking was more profitable in New York. Their review of the information relied on by the district court pointed to no such conclusion.

Judge Sotomayor wrote a separate dissent, joined by the other dissenters, that made this same point, describing the district court’s deterrence reasoning as “unsubstantiated and unconvincing,” since it was based on a single law review article that “hypothesized - without the benefit of data - that gun trafficking might be more profitable in areas with strict gun laws.” This opinion also points out that the majority should not have relied on data and economic theories not referenced by the district court. This “shifts the appellate court’s role from reviewing the lower court’s sentencing rationale to crafting it.”

The Dangerousness Theory

The members of the court had an even wider range of views on the district court’s conclusion that firearms offenses are more dangerous in densely populated urban areas. The court did not rule on the issue.

As summarized in the majority opinion, “some of us would hold that the district court, in its wide discretion, permissibly relied on a determination that trafficking guns into an urban area is likely to create more harm than the national average offense envisaged by the Guidelines. Others would hold that the district court erred to the extent that it based the sentence on the notion that guns are more dangerous in metropolitan areas. Still others are unsure whether reference to such broad, nonspecific geographical and demographic factors is appropriate in the context of this case.”

Other Interesting Tidbits

The majority opinion has a lot of other interesting, if more general, material that is worth looking at.

1. En Banc procedure

This opinion gives nice explanation of the court’s view of the en banc procedure itself, a procedure that the court uses “sparingly.” It notes that when the members of the court are in “substantial agreement,” an en banc opinion “gives us the opportunity to speak somewhat more broadly, for the purpose of giving guidance to district courts in this Circuit and to future panels.” It also notes that when the members of the court “possess significantly differing views on a particular issue,” it is “often wise to avoid speaking as an en banc Court unless the point is one that is strictly necessary to decide the case.” This is interesting, as it might explain the infrequency of en banc rehearing in this circuit.

Most importantly, however, Judge Calabresi’s majority opinion seems to have abandoned, sub silentio, the circuit’s annoying practice of using the phrase “in banc” instead “en banc.”

2. Substantive Reasonableness

The majority opinion changes the court’s standard for substantive sentencing review, even though the court did not review Cavera’s sentence substantively. From now on, the court will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions ... . To the extent that our prior cases may be read to imply a more searching form of substantive review, we today depart from that understanding.”

The opinion also describes the substantive review process in detail. First, the court takes into account “the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” The Guideline range is not presumptively reasonable, while a non-Guideline sentence is not presumptively unreasonable, and there need not be “extraordinary” circumstances to justify one.

Substantive review is also informed by 18 U.S.C. § 3661, which provides that there is “no limitation” on the information about the defendant that a court can consider “for the purpose of imposing an appropriate sentence.” Section 3661 is not a “blank check” for district courts, however. A appellate court will consider “whether a factor relied on by a sentencing court can bear the weight assigned to it” under the totality of the circumstances of the case.

The court recognizes that a district court may vary from the Guidelines based solely on a policy disagreement, even where that disagreement applies to a wide class of offenders or offenses. Variances from the Guidelines will “attract greatest respect” on appeal when the judge finds that the case is outside the “heartland,” while a finding that a Guideline sentence does not properly satisfy § 3553(a) in a “mine-run case” will be subject to “closer review.”

The question of when a sentence merits “closer review,” however, is still evolving. “More will have to be fleshed out as issues present themselves.”

3. Procedural Reasonableness

Procedural review entails, in very large part, considering the district court’s explanation for the sentence. An adequate explanation is a “precondition for meaningful appellate review.” The explanation must satisfy the reviewing court that the district court “has considered the parties’ arguments and that it has a reasoned basis for exercising its own legal decisionmaking authority.”

A district judge imposing a non-Guideline sentence “should say why she is doing so” and should “bear[] in mind that a major [variance]... should be supported by a more significant justification than a minor one.” However, once the appellate court is “sure” that the sentence “resulted from the reasoned exercise of discretion, we must defer heavily to the expertise of district judges.”

Such deference might well “result in substantial variation among district courts,” but this is a “necessary cost” of the Booker remedy. In its recent cases, “the Supreme Court has made clear its view that disparities in sentences imposed by different district judges are more likely to reflect justified differences than are those arising from difference of opinion among appellate panels.”

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