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The 2D U.S. Circuit Court of Appeals has reversed a federal judge who imposed a tougher sentence than the Federal Sentencing Guidelines warranted on a man who sold guns to New Yorkers, basing his decision on the theory that gun trafficking in the city causes greater harm than in other regions and thus requires greater deterrence. U.S. v. Cavera, No. 05-4591-cr. The panel said that Judge Charles Sifton of the U.S. District Court for the Eastern District of New York 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 on behalf of the court. The 2d 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 nothing to suggest Sifton was biased or would have any difficulty following the circuit’s instructions. On April 8, 2004, two of Cavera’s co-defendants, along with a government informant, traveled to Florida, where Cavera was living. 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 nonguidelines sentence of two years in prison and a $60,000 fine, citing Section 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. Unusually, both the defense and the government agreed that Sifton erred in considering local characteristics in imposing a nonguidelines sentence. For that reason, the circuit court decided to appoint amicus curiae counsel to brief the position taken by the district court. Cardamone said that 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 Section 3553(a) factors, (a)(6), provides that a judge consider the need to “avoid” unwarranted disparities in sentences among 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 2d 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.” 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.”

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