A federal judge has been reversed for imposing a tougher sentence on a man who sold guns to New Yorkers on the theory that gun trafficking in the city causes greater harm than in other regions and thus requires greater deterrence.
The 2nd U.S. Circuit Court of Appeals said Wednesday that Eastern District of New York Judge Charles Sifton should not have given a sentence outside of the guidelines to defendant Gerard Cavera based on local concerns.
"Consideration of regional and local factors is improper because injecting them into a sentencing court's analysis undercuts and directly contravenes one of the primary purposes of the guidelines" to diminish unwarranted sentencing disparity, Judge Richard Cardamone wrote for the appeals panel in United States v. Cavera, 05-4591-cr.
The circuit remanded the case to Sifton for resentencing. It denied a request by Cavera that the case be given to another judge, saying there was no suggestion Sifton was biased or would have any difficulty following the circuit's instructions.
According to the decision, on April 8, 2004, two of Cavera's co-defendants, along with a government informant, traveled to Florida, where Cavera lived when he was away from New York. The informant gave one of the co-defendants $11,500 for the purchase of firearms. Cavera then gave the co-defendants two boxes containing 16 firearms. After the sale, the co-defendants returned to New York.
Cavera was indicted on 11 counts of violating federal gun trafficking laws. On Nov. 24, 2004, he pleaded guilty to one count of conspiring to deal in and transport firearms in violation of 18 U.S.C.§371.
The sentencing guidelines range was 12 to 18 months in prison and a fine of between $3,000 and $30,000, but Sifton imposed a non-guidelines sentence of 2 years in prison and a $60,000 fine.
Sifton cited §3553(a)(2) of the guidelines, which calls for a judge to impose a sentence reflecting the seriousness of the offense and the need for deterrence. Cavera appealed.
The appeal was unusual for two reasons.
First, both the defense and the government agreed that Sifton erred in considering local characteristics in imposing a non-guidelines sentence. For that reason, the circuit decided to appoint amicus curiae counsel to brief the position taken by the district court.
Daniel Hochheiser of Hochheiser & Hochheiser was appointed, and Judge Cardamone said, "[W]e note his commendable candor in advising the court that his extensive research unearthed scant authority supporting the district court's sentence."
Second, Judge Guido Calabresi, who was joined on the panel by Judges Cardamone and Rosemary Pooler, took the rare step of issuing a concurrence "dubitante" -- agreeing formally with the result that the sentence should be vacated "although not without doubts."
Judge Cardamone said Judge Sifton's error came in imposing his own belief that "gun trafficking in New York City inflicts greater harm and requires stiffer penalties to achieve deterrence than the same offense committed in less densely populated parts of the country."
Cardamone pointed out that another one of the §3553(a) factors, (a)(6), provides that a judge consider the need to "avoid" unwarranted disparities in sentences between different defendants.
"It seems plain that the rationale in rejecting the guidelines range for Cavera's offense undermines the primary purpose of the guidelines," Cardamone said. "The trial court's reasoning would render the guidelines a nullity and would result in a return to disparate sentences across districts where courts fashion sentences, not on facts unique to defendants' conduct or circumstances prevailing in the locality where each court sits."
The circuit cautioned that it did not want to suggest that the consideration of disparity under (a)(6) "trumps or should be given more weight that considerations under (a)(2)."
"Rather, we hold simply that the facts relied on by the district court pertaining to New York City are not the sort of facts properly considered under (a)(2) and cannot therefore properly support a non-guidelines sentences," Cardamone said.
While courts can go outside the guidelines range on "facts and circumstances particular to the individual defendant and his crime," the judge wrote, courts may not sentence "on the basis of facts that apply to whole classes of crimes."
Judge Calabresi wrote in his concurrence that "I am not ... comfortable with, and cannot join, the broad language of the majority that denies the possibility of any consideration of geographic factors and that relies on the, to me false, dichotomy between individual culpability and factors that are 'not unique or personal to a particular defendant,' United States v. Rattoballi, 452 F.3d 127 (2d Cir. 2006). That line seems to me to be based more on a legal fiction rather than on any behavioral reality."
Jeffrey Rabin represented Cavera. Assistant U.S. Attorneys Taryn Merkl and David James represented the government.