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Sunday, May 23rd, 2010

Deconstruction Project

United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (Cabranes, Parker, CJJ, Underhill, DJ)

In this first-of-a-kind opinion, the court (1) held that a within Guideline – albeit statutory maximum – sentence was substantively unreasonable and (2) found that an offense Guideline other than the crack Guideline was not the product of the Commission’s traditional empirical role and hence, under Kimbrough, was not entitled to deference.

Background

While chatting online with undercover officers posing as teenage boys, Justin Dorvee sent them computer files containing child pornography. He was arrested when set out to meet one of the boys. A search of his home revealed several thousand still images and more than 100 videos containing child pornography. He ultimately pled guilty to one count of distribution of child pornography.

Under a correct application of U.S.S.G. § 2G2.2, which prescribed a base offense level of 22 plus enhancements for such …

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Wednesday, October 14th, 2009

A Matter of Substance

United States v. Rigas, No. 08-3485-cr (2d Cir. October 5, 2009) (Feinberg, Winter, Cabranes, CJJ)

When we last heard about the Rigas père et fils – former senior officers at Adelphia Communications who were convicted of conspiracy, securities, wire and bank fraud – the circuit affirmed the majority of their convictions, but reversed a single count of bank fraud for insufficient evidence. United States v. Rigas, 490 F.3d 208 (2d Cir. 2007). Probably because the court remanded the case for resentencing, the 2007 opinion did not address the defendants’ long prison sentences: twenty years for the father and fifteen for the son, where the Guideline recommendation for each was life.

This case is the appeal from the remand. The decision covers little new ground, but provides very helpful guidance from the court on the standard it applies when reviewing a sentence for substantive reasonableness.

To get there, however, the court …

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Sunday, December 7th, 2008

Take It To The Banc

United States v. Cavera, No. 05-4591-cr (2d Cir. December 4, 2008) (en banc)

Gerard Cavera pled guilty to participating in a scheme in which guns were purchased in the South then transported to New York City for sale. At sentencing, the district court imposed a sentence six months longer than the top of the Guideline range, and an above-Guideline fine, based on two “location specific” concerns. The court held that firearms offenses are more dangerous in densely populated urban environments and that the need for deterrence was greater because New York’s strict gun laws made it one of the few places where gun-running was profitable.

On Cavera’s appeal, a panel of the court vacated the sentence as procedurally unreasonable (the case was blogged here twice, most recently in October 2007 under the title Location, Location, Location). The circuit then took up the case en banc. Although the court divided deeply …

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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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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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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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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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