Archive | substantive reasonableness

Saturday, June 14th, 2008

Allocution Lessons

United States v. Gonzalez, No. 07-4824-cr (2d Cir. June 11, 2008) (Newman, Walker, Pooler, CJJ)

In this case, the circuit sets out the procedure that a district court should follow when it realizes that it has sentenced a defendant without first giving him an opportunity to allocute. It also criticizes the imposition of the statutory maximum sentence.

1. Facts

Gonzalez admitted that he violated his supervised release by possessing marijuana. At a sentencing hearing, Judge Conti, visiting from the Northern District of California, heard from the probation officer, who reported that Gonzalez was released from prison in November of 2006. He was sent from there to immigration custody, and released by immigration about two weeks later. Although the officer sent him three notices, Gonzalez never reported to probation. The officer later learned that Gonzalez had been convicted of two petty offenses after his release.

With respect to the failure to …


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Categories: sentencing allocution, substantive reasonableness, Uncategorized

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Monday, March 24th, 2008

Fraud Man Out

United States v. Cutler, No. 05-2516(L) (2d Cir. March 17, 2008) (Jacobs, Kearse, Pooler, CJJ)

In this case, the government successfully appealed the exceptionally lenient sentences that Judge Preska imposed on two defendants convicted of a multi-million dollar fraud. The circuit found that the sentences were both procedurally and substantively unreasonable, and remanded the case for resentencing.

Facts

James Cutler was the CFO of a holding company that owned hotels; Sanford Freedman was its general counsel. Together, they helped the company and its principals cheat a number of banks out of more than $100 million. In very brief, the scheme worked like this:

In the 1990’s, the holding company restructured its debt, and its principals executed deficiency notes that made them personally liable for those debts. Around the same time, they sold key assets of their company to another company for stock worth more than $100 million. Although they therefore …


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Categories: procedural reasonableness, sentencing, substantive reasonableness, Uncategorized

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Thursday, November 29th, 2007

Have You Hugged A Sex Offender Lately?

United States v. Juwa, No. 06-2716-cr (2d Cir. November 28, 2007) (Walker, Calabresi, Sack, CJJ)

United States v. Baker, No. 05-4693-cr (2d Cir. November 16, 2007) (Summary Order)

The circuit has. Twice, but only once in a published opinion. In Juwa, the court found that a 90-month sentence was procedurally unreasonable because it might have been based on unsubstantiated pending state court charges.

Juwa pled guilty to possessing child pornography, and faced a 24 to 30 month range. At the time of his federal sentencing he was charged in state court with sexually abusing his nephew on multiple occasions, and had worked out a plea agreement under which he would plead to a single count in exchange for a 5-year sentence that would be concurrent to his federal sentence.

At his federal sentencing, however, the district court went way above the agreed-upon range “based on the information before” it about …


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Categories: procedural reasonableness, sentence, substantive reasonableness, Uncategorized

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Saturday, September 29th, 2007

Follow The Bouncing Anders

United States v. Whitley, Docket No. 05-3359-cr (2d Cir. September 17, 2007) (Straub, Pooler, Parker, CJJ) (per curiam)

Once – or rather twice – again, in these consolidated appeals, the Circuit has bounced Anders briefs. Here the court was dissatisfied with the briefs’ treatment of the reasonableness of the sentence. One “merely recite[d] the legal standard for procedural reasonableness and desribe[d] the sentencing process” but did not analyze either the procedural or substantive reasonableness of the sentence itself. The other made conclusory statements about the reasonableness of the sentence but did not analyze the district court’s sentencing determinations or the sentence itself.

After reviewing the purposes of Anders briefs, the court held that such briefs must include a discussion of both the substantive and procedural reasonableness of the sentence, reminding the bar that there is no presumption of reasonableness for Guidelines sentences in this Circuit.

What is the lesson here? …


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Categories: Anders, presumption, procedural reasonableness, sentence, substantive reasonableness, Uncategorized

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