Mindful of 'Booker,' 2nd Circuit Revises Sentencing Opinion

Mark Hamblett

New York Law Journal

Ever since the U.S. Supreme Court in 2005 upended the federal sentencing guidelines in United States v. Booker, 543 U.S. 220, judges have struggled to apply the now-advisory guidelines.

One example of the difficulty they have faced came last week, when a panel of the 2nd U.S. Circuit Court of Appeals took the unusual step of withdrawing an opinion to issue a new one.

In June, Judges Richard Cardamone, Guido Calabresi and Rosemary Pooler reversed Eastern District of New York Judge Charles Sifton, who had gone above the guidelines range of 12-18 months and given two years in prison to Gerard Cavera after he pleaded guilty to conspiracy to deal in and transport firearms.

Sifton's mistake, the panel said in June, was that he considered New York City's population density and reasoned that gun trafficking there required a heavier sentence.

The circuit panel, in a decision by Cardamone, initially said Sifton's approach ran counter to one of the chief purposes of the guidelines -- to reduce disparity in sentencing across the nation's federal districts.

But in a new opinion released Oct. 11 in United States v. Cavera, 05-4591-cr(L), the court said its June opinion "prompted comments from several members" of the circuit, so it was withdrawing the old opinion as well as a concurring opinion by Calabresi.

"The best I can understand is that, after they issued the first decision, other judges looked at this and said, 'Look, this is a critical issue for sentencing purposes and the decision itself doesn't really cover all the issues that are necessary to set precedent,'" said Jeffrey Rubin, who represented Cavera.

The circuit's new opinion does not change the result -- a remand to Sifton for resentencing. However, Rubin said it is less sweeping in its language than the first ruling and focuses more on limiting the holding to the facts of Cavera's case.

In the June opinion, for example, the court said the sentence was unreasonable because the lower court relied on "community-specific characteristics," such as population density.

But in the second opinion, the circuit states, "Under the circumstances of this case, the district court's reliance on the simple fact of population density to impose a non-guidelines sentence constitutes legal error and rendered the defendant's sentence unreasonable."

The case was already unusual in one respect: With the government and the defense agreeing that Sifton erred in considering urban population to toughen a sentence, the Second Circuit appointed an attorney, Daniel Hochheiser of Hochheiser & Hochheiser, to serve as amicus and brief the position taken by the judge.

In the Oct. 11 opinion, Cardamone said Hochheiser's "exposition of the issues was helpful to us, and we note his commendable candor in advising the court that his extensive research unearthed scant judicial authority supporting the district court's sentence."

'WEAK SUPPORT'

Added in the opinion is a new section that states, "The district court's weak support for its assessment of the harmfulness of Cavera's crime cements our view that it resorted to policy preferences in imposing the sentence."

"Although the court's central factual argument -- that injury to innocent bystanders is more probable in crowded environments -- is sound in theory, its application to New York City is unduly speculative," Cardamone said, because New York City has both dense neighborhoods and quiet ones, "like Rockaway Point in Queens and suburban areas of Staten Island, where it would not apply."

"New York City is simply too large and varied a community to draw meaningful conclusions as to the potential impact of stray bullets that may someday originate from a trafficked firearm," he wrote.

In the new opinion, the court also went out of its way to state, "We do not decide that consideration by a sentencing court of population density or similar community-based factors is impermissible in all cases."

"What strikes me as different," Hochheiser said Monday, is that in June the circuit said the district court committed legal error by considering "local characteristics, and it seems what bothered some of the judges on the circuit was that statement was too broad." The new opinion, he said, "states more narrowly that the district court committed legal error by considering the population density."

The court left unchanged its insistence that Booker requires courts to "tailor sentences to reflect an application" of the factors outlined in §3553(a) of the guidelines, including the seriousness of the offense and the need for deterrence.

"But such individualized sentencing does not authorize a district court to inject into sentencing decisions its policy preferences with respect to the category of offense in question or the kind of community in which it is perpetrated," Cardamone said.

Assistant U.S. Attorneys Taryn Merkl and David James represented the government.