In the post-Booker1 era, certain aspects of federal sentencing law have been solidified. It is, of course, now understood that the federal Sentencing Guidelines are advisory, not mandatory. In the current regime, when imposing a sentence, district courts must consider the applicable Sentencing Guidelines range, along with the other factors itemized in 18 U.S.C. §3553(a). Appellate courts can review sentences for procedural error and “substantive reasonableness.”2 But it is not yet clear precisely how much leeway appellate courts will give district courts when faced with government challenges to the substantive reasonableness of sentences that are far below the applicable Guidelines range. The recent decision by the U.S. Court of Appeals for the First Circuit in United States v. Prosperi, 686 F.3d 32 (1st Cir. 2012), affords great discretion to sentencing courts to deviate from the Sentencing Guidelines, despite expressing palpable discomfort with the extent of deviation at issue in this particular case. For this reason, the opinion is likely to be cited often in the First Circuit and elsewhere, and its analysis and approach warrants examination.
Background
In white-collar cases, the question of how much room sentencing courts have to impose below-Guidelines sentences (and how stringent appellate review of such sentences will be) looms large in light of the general trend in post-Booker sentencing. Although the Guidelines have been rendered advisory, the government still more often than not takes the position that the appropriate sentence in a white-collar case is one within the Guidelines range. This is so, notwithstanding that the Guidelines ranges for white-collar cases are often extremely high. In particular, because the Guidelines ranges for white-collar cases are subject to large enhancements driven by the amount of money and number of victims involved, the ranges often dictate lengthy prison sentences, even for garden variety frauds.
