Saturday, March 20th, 2010

An Exercise in Frivolity

United States v. Davis, No. 08-3240-cr (2d Cir. March 15, 2010)
(Winter, Sack, CJJ, Cogan, DJ)

Davis pled guilty to a two-count child pornography indictment. He faced a 60-month mandatory minimum and a guideline range of 97 to 121 months’ imprisonment. At sentencing, he argued forcefully for a 60-month sentence, focusing on his age and health problems as well as his conduct – he had no contact with a child, and did not distribute the images. The court sentenced him at the bottom of the range, noting “I see no reason to deviate form the ranges that are set forth in the Sentencing Guidelines.”

On appeal, he argued that the sentence was procedurally unreasonable because the district court treated the guidelines as presumptively reasonable, and that it was substantively unreasonable for largely the same reasons he cited in the district court. The government, in response, did not file an opposition brief. Instead, it moved for summary affirmance. The circuit denied the motion and issued this opinion to explain its reasons.

The court began by noting that summary affirmance, as opposed to full merits briefing, is discretionary on the part of the appellate court and should be treated as “a rare exception to the completion of the appeal process.” It is a “short-cut” and, given the stakes involved, is only available if an appeal is truly “frivolous.” In criminal appeals, in particular, the decision to characterize a case as frivolous is “particularly perilous.”

Next, the court defined “frivolous” – an appeal is frivolous when it “lacks an arguable basis either in law or in fact.” That a “correct resolution of [the] appeal seems obvious” is not enough. Rather, a case is frivolous only where the legal conclusions are “inarguable” or the factual allegations are “fanciful.”

Here, the panel did not think that Davis’ appeal was frivolous. His procedural claim rested on a “close reading of the language used by the district court.” He argued that the court’s statement that it found “no reason” to give a non-Guideline sentence suggested that it was operating from the presumption that a guideline sentence would be reasonable. While the panel did not rule on whether this interpretation of the district court’s statement was correct, it concluded that it was neither “inarguable nor totally devoid of support.”
Thus, while the panel did not need to reach Davis’ arguments on substantive reasonableness, it observed nonetheless that those arguments were also non-frivolous. His claim t that the district court’s sentencing decision reflected an insufficient consideration of some of the statutory factors was “not so completely baseless as to be frivolous.”

The court accordingly denied the motion for summary affirmance and directed the clerk to set a briefing schedule.


This decision, while procedurally anomalous, is nevertheless quite important because of its impact on Anders briefs. It sets a very high bar for frivolousness, and should cause all counsel who are considering filing an Anders brief to think very carefully about whether there might be some view of the record, no matter how weak, that would lend itself to a merits brief instead.

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