A Post-Booker First? Circuit Vacates a Sentence as Unreasonable under Booker

United States v. Doe, Docket No. 04-1973 (2d Cir. April 5, 2005) (Wesley, Hall, and Mukasey, D.J.): In this unpublished summary order, the Circuit vacates a sentence as unreasonable under Booker. This is, to my knowledge, the first instance of a post-Booker reversal under the reasonableness standard in the Second Circuit.

Because it is merely a summary order, only a few facts can be gleaned. The defendant was convicted of two counts of making false statements on a passport application. He refused to disclose his true name throughout the proceedings, including to the Probation Office. The PSR determined that the applicable Guidelines range was 6 to 12 months, and recommended a sentence of “time served” since defendant had been in custody for nearly 18 months by the time of sentencing. Defendant had no apparent criminal history.

Judge Duffy — no great surprise — imposed a 10-year sentence (the statutory maximum). Apparently, the good judge upwardly departed to the statutory maximum because of the defendant’s refusal to disclose his true identity.

The Circuit concluded that this sentence was unreasonable, “[i]n light of the crime charged, the sentencing range recommended, Doe’s lack of any provable criminal history (based on fingerprint checks), and the district court’s inadequate balancing of these factors against the perceived threat posed by Doe.” The Circuit specifically noted that although Doe’s intransigence regarding his name was “vexing” and “potentially obstructive” of the immigration process, it did not justify a 10-year sentence. Finally, the Circuit remands the case to a different judge for resentencing. Lucky Mr. Doe.

Comment: Too much should not be made of this decision. Apart from being non-precedential, the case almost certainly involved a pre-Booker sentencing. And even under pre-Booker law, Judge Duffy’s draconian sentence — representing a 10-fold increase over the top of the Guidelines range — would likely have been vacated as unreasonable under 18 U.S.C. § 3742(e)(3)(C) (no longer in effect after Booker).