In United States v. Smith, __ F.3d __ , 2020 WL 521612 (Feb. 3, 2020) (Wesley, Chin, Sullivan), the Court of Appeals held that no Statement of Reasons (“SOR”) need be filed for a sentence imposed in a VOSR, even if it is above the Guidelines range, because the Sentencing Commission has not provided an SOR form for a VOSR. The Court overruled its prior precedent holding that a Statement of Reasons was required for a VOSR sentence, e.g. United States v. Aldeen, 792 F.3d 247, 251-52 (2d Cir. 2015); United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007), after a “mini-en banc” procedure of circulating the opinion to all active members of the Court. The Second Circuit reasoned that the prior rule was based on an earlier version of the 18 U.S.C. §3553(c)(2) which was amended in 2010. Unlike the former statute, which required an SOR to be included in the Judgment, the new statute requires the reasons to be stated in an SOR form issued by the Judicial Conference or the Sentencing Commission. The form issued for VOSR judgments includes no section for an SOR. Therefore, no SOR is required.
The Court went on to affirm the two-year sentence imposed for, inter alia, engaging in new criminal activity (shooting someone in the leg during fight), and associating with a felon. The Guidelines range was four to ten months. The Court held that the reasons given for the variance on the record ( gun violence and the danger that it posed) were sufficient and that the sentence was substantively reasonable.
Written by: Colleen Cassidy