The wide-ranging discretion in federal sentencing given to district judges by the U.S. Supreme Court allows a tougher prison term to a gun offender in New York City than in other parts of the country, the 2nd U.S. Circuit Court of Appeals said Thursday.
Sitting en banc, the full court said Eastern District of New York Judge Charles Sifton had the authority to depart upward under the federal sentencing guidelines and give defendant Gerard Cavera a harsher sentence, in part because of the unique problems guns pose in urban areas and the city's own efforts to stem handgun violence.
The decision, said Cavera's lawyer, Jeffery A. Rabin, creates a dangerous precedent because it gives judges wide latitude to give higher sentences by relying on a factor that already is in the advisory guidelines -- the need for deterrence.
The full appeals court also used its opinion in United States v. Cavera, 05-4591-cr, to expand on the degree of discretion given trial judges and the approach the circuit takes in reviewing sentences for reasonableness.
Cavera had pleaded guilty to one count of conspiracy to deal in and to transport firearms in violation of 18 U.S.C. §371. When he appeared before Sifton for sentencing on July 28, 2005, the guidelines called for a sentence of 12 to 18 months in prison and a fine between $3,000 and $5,000.
However, Sifton gave Cavera two years in prison and a $60,000 fine.
While mindful that one of the goals of the guidelines is to reduce sentencing disparities between different federal districts, Sifton said a disparity was warranted here because of the greater damage inflicted by guns in urban areas, in part because of population density.
The guidelines, he said, did not adequately meet the "crying need to do what can be done to deter gun trafficking into the large metropolitan area[s] of this country," and he cited higher homicide rates in cities as well as the fact that states with strict gun laws, like New York, create a larger and more profitable black market for weapons.
Second Circuit Judges Richard Cardamone, Guido Calabresi and Rosemary Pooler reversed Sifton in 2007, finding he erred in considering population density and saying his decision ran counter to the goal of reducing sentencing disparities for similar crimes nationwide.
But that opinion prompted several other members of the circuit to express their concern that the panel had gone down the wrong road. In October 2007, it withdrew its original opinion and issued a new one reversing Sifton's rulings on narrower, more fact-specific grounds. Calabresi joined the result but issued a concurrence "dubitante" -- agreeing the sentence should be vacated "although not without doubts."
A majority of the active judges on the circuit voted to rehear en banc and oral arguments were heard in March.
"Why can't a national system tolerate regional disparities" Judge Dennis Jacobs asked during oral argument. "Having a gun is a serious problem in New York City. Maybe in the 8th Circuit they worry about cow-tipping or something."
Thursday, Calabresi wrote for the entire court when he said that Cavera's sentence should be upheld because of Sifton's focus on deterrence as a rationale.
The judge's discretion to go outside the guidelines range was supported by the U.S. Supreme Court holding that mandatory application of the guidelines was unconstitutional in United States v. Booker, 543 U.S. 220 (2005), and two cases that fleshed out judicial discretion in sentencing: Gall v. United States, 128 S. Ct 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007).
Together, Calabresi said, the cases require judges to consider the now advisory guidelines and calculate, at least generally, the applicable range, while considering the sentencing factors outlined in §3553(a) of the guidelines.
But judges must not presume the guidelines ranges are reasonable, he said. Instead, they must conduct their "own independent review of the sentencing factors" and, while they are "generally free to impose sentences outside the recommended range," when they deviate from that range, they "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance."
The next question, Calabresi said, is the degree of scrutiny the federal appeals courts apply in determining whether a sentence is reasonable.
"As to substance, we will not substitute our own judgment for the district court's on the question of what is sufficient to meet the §3553(a) considerations in any particular case," he said. "We 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.'"
Calabresi then made clear that "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."
He also cautioned that this great degree of deference is only warranted where trial judges meet the Sentencing Reform Act's procedural requirements, such as failing to calculate the guidelines sentence, making a mistake in calculating, or treating the guidelines as mandatory.
The 2nd Circuit, he said, will consider the "totality of the circumstances" when examining whether the lower court gave appropriate weight to a factor, an approach he said ensures that the "appellate review, while deferential, is still sufficient to identify those sentences that cannot be located within the range of permissible decisions."
AGREE IN PART
The entire court joined with Calabresi up to this point, but it divided on his analysis of Sifton's sentence.
Calabresi was joined by Judges Dennis Jacobs, Jose Cabranes, Robert Sack, Robert Kaztmann, Barrington Parker, Reena Raggi, Richard Wesley, Peter Hall and Debra Ann Livingston.
Judges Cardamone, Pooler, Chester Straub and Sonia Sotomayor agreed with the majority's description of the law in Gall and Kimbro but disagreed with the endorsement of Sifton's rationale.
Calabresi said Sifton committed no procedural or substantive error and "properly rested" his "decision that a sentence above the guidelines range was necessary to satisfy the §3553(a)(2) factors on two independent grounds."
The first is the fact that New York is a high-density area where guns end up in the wrong hands, and thus firearms trafficking poses a risk of greater harm. The second is New York's strict gun regulation scheme, which creates a bigger black market than in other areas.
The court was divided on the first ground, he said, disagreeing over using the factor that guns are more dangerous in urban areas.
"Still others are unsure whether reference to such broad, nonspecific geographical and demographic factors is appropriate in the context of this case," he said. "We need not resolve that disagreement today, because the district court's second ground, that of deterrence, provides an independently sufficient justification for its variation from the guidelines."
Judge Straub found the district court's sentence "exceeded its allowable discretion" because "the links between the facts and the conclusions in this case are so tenuous as to verge on speculation and that the sentence does not survive reasonableness review."
He was joined in full by Judges Cardamone and Sotomayor. Judge Pooler joined in the dissent in one respect -- that there was no support for the finding that firearms trafficking in New York is more profitable on average than in other parts of the country.
Sotomayor penned another dissent, joined in full by Cardamone and Straub and in part by Pooler, saying she objected to the majority's "overly deferential review" of Sifton's "variance, on general policy grounds, from the Sentencing Guidelines."
Judge Raggi issued a concurring opinion, joined by Judges Jacobs, Cabranes and Parker, in which she said she would have upheld the sentence on more than just the deterrence rationale.
"I identify no clear error in the district court's finding that gun trafficking in New York is a sufficiently more serious crime than the mine-run case based on the high population density of the city as well as the likely illegal disposition and use of such guns," Raggi said.
Assistant U.S. Attorney Taryn Merkl represented the government. Leonard Koerner and Deborah A. Brenner of the Law Department weighed in as amicus curiae for the City of New York.
Alan Vinegrad, former U.S. Attorney in the Eastern District and now a partner at Covington & Burling, said the Cavera opinion sends a message that the 2nd Circuit will defer to a lower court's judgment on sentencing absent a good reason to reverse it.
"This is a ringing endorsement of the broad discretion that judges now have to impose fair and just sentences even when the guidelines call for a different result," Vinegrad said.
Rabin said he believes the majority's rationale will be used by judges only to impose tougher sentences.
"I guarantee you will never see this rationale applied at the lower end," he said. "It's only going to be applied where a judge has a gut feeling that he wants to do something tougher."
Rabin also said the decision justifies a return back to "incredible disparity" where "you are going to have 30 different judges giving 30 different sentences."
Professor Douglas A. Berman of the Ohio State University's Moritz College of Law said the circuit was attempting to provide an overview of the landscape of federal sentencing and appellate review and move the law forward in a way that influences other circuits.
"More than the specific facts of the case, what is going on here is that circuit courts have been very uncertain about what their role is to be in the wake of Gall and Kimbrough," said Berman, who is the co-author of "Sentencing Law and Policy: Cases, Statutes and Guidelines" and the author of the Sentencing Law and Policy blog.