Tuesday, December 6th, 2005

Reasonableness Standard Governs Appellate Review of Upward Departure in Length of Supervised Release Term

United States v. Avello-Alvarez, Docket No. 05-0638-cr (2d Cir. Dec. 6, 2005) (Sotomayor, Katzmann, Eaton (by designation)): This short opinion principally confirms that the law governing appellate review of upward departures in the length of the term of supervised release remains unchanged in light of Booker: Before and after that decision, the Circuit reviews such departures for reasonableness. The Court notes additionally, as it did in Crosby and Selioutsky, that “reasonableness has substantive and procedural dimensions,” and thus that the Court will review “both the length of the sentence as well as whether the district court treated the Sentencing Guidelines as advisory and considered the applicable Guidelines range and the factors listed in § 3553(a).” Op. at 3.

Here, the district judge upwardly departed (presumably from a range of 3 to 5 years) and imposed a 7-year term of supervised release, citing among other things defendant’s “recidivism, mental health needs, and substance abuse problems.” Op. at 4. Unfortunately, the Circuit had no occasion to consider the “substantive” reasonableness of the sentence, since the only argument raised on appeal was whether the 7-year term was unreasonable because it was higher than the 3-year term recommended by the Probation Office. The Circuit appropriately gave short shrift to this odd argument. Id.

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