United States v. Fairclough, Docket No. 05-2799-cr (2d Cir. Feb. 17, 2006) (Jacobs, Leval, Straub) (per curiam): The Circuit holds in this short opinion that (1) there is no Ex Post Facto problem when the Booker remedy (i.e., the advisory Guidelines regime) is used to sentence a defendant who committed his offense before Booker was decided in January 2005; and (2) a 48-month non-Guidelines sentence, more than twice the midpoint of the applicable range (21 to 27 months), was reasonable in light of the recidivism (Fairclough “had a relatively uninterrupted string of criminal activity and arrests” from 1998 to 2002) and “seriousness of the offense” concerns (Fairclough did not merely possess a gun, but sold it to an undercover believing that the buyer “was about to do bad with it”) cited by the district court to justify the sentence. No new legal ground is broken on either point: (1) the Circuit had already rejected an Ex Post Facto challenge to application of the Booker remedy in United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005) (click here for our discussion of Vaughn); and (2) to our knowledge, the Circuit has never struck down a sentence as unreasonable under Booker in a published decision.
If anything, the decision simply confirms the Circuit’s highly deferential posture toward district court sentences under reasonableness review. E.g., Op. 6-7. (The decision also contains good language repeating the Circuit’s view, announced in Crosby, that it will not fashion “any per se rules as to the reasonableness of every sentence within an applicable guideline or the unreasonableness of every sentence outside an applicable guideline.” Op. 7). While this may be bad news for defendants (like Fairclough) challenging above-the-range or within-the-range sentences on appeal as unreasonable, it will likely prove good news for those defending Government appeals of below-the-range sentences. And since both anecdotal and statistical evidence confirm that there are many more defendants in the latter category than the former — at least in this Circuit — the overall result, even if not ideal, may be a net positive for defendants.
P.S.: Click here for Professor Berman’s discussion of this case.