Wednesday, October 14, 2009

A Matter of Substance

United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)

When we last heard about the Rigas père et fils - former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud - the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Probably because the court remanded the case for resentencing, the 2007 opinion did not address the defendants’ long prison sentences: twenty years for the father and fifteen for the son, where the Guideline recommendation for each was life.

This case is the appeal from the remand. The decision covers little new ground, but provides very helpful guidance from the court on the standard it applies when reviewing a sentence for substantive reasonableness.

To get there, however, the court fist had to consider whether the district court correctly handled the resentencing. Under circuit precedent, where a conviction on one or more counts is overturned on appeal, the circuit’s “default rule” is that the case should be remanded for a de novo resentencing. Here, the district court viewed this rule as too “mechanical,” and instead treated the reversal of a single count of this multi-count indictment as a “sentencing error,” not a “conviction error.” It therefore conducted only a limited resentencing. Even so, however, the court reduced each defendant’s sentence by three years and noted that, alternatively, it would have done the same at a de novo resentencing.

The circuit held that the district court’s treatment of the remand was error. When any part of a conviction has been overturned on appeal “a district court ... is required to resentence de novo [and] must reconsider the sentences imposed on each count.” Here, however, the error was harmless, in light of the district court’s alternative ruling.

The court then turned to the substantive reasonableness of the resulting sentences. The court’s last decision to discuss meaningfully this issue, the en banc in Cavera, left us with a standard that was fairly amorphous. “[W]e 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.”

Here, the court gave some more structure to that language. First, it insisted, as it has before, that substantive reasonableness review is not a “rubber stamp.” It then likened the standard for substantive reasonableness to similar standards that apply in other situations: the “manifest-injustice” standard for granting Rule 33 motions and the “shocks-the-conscience” standard for intentional torts by state actors. All three standards are deferential to district courts and provide relief “only in the proverbial ‘rare case.’” They are also “highly contextual,” which means that they “do not permit easy repetition in successive cases." And, finally, they are “dependent on the informed intuition of the appellate panel that applies these standards.” All told, these standards provide a “backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

Under these principles, the court had “no trouble” concluding that the Rigas’ sentences were substantively reasonable. The court noted that stiff Guideline sentences for white collar crimes reflect Congress’ judgment as to the appropriate national policy for such crimes. Moreover, the Rigas’ crimes were specifically intended to create a false picture of profitability at Adelphia, even for professional analysts, and were motivated by the defendants’ personal financial circumstances and outright greed.



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