United States v. Kaba, Docket No. 05-3813-cr (2d Cir. Mar. 8, 2007) (Walker, Sack, Wesley): In this case, the government urged, in support of the proposed sentence, that the defendant came from a tightly-knit West African community, and that a stiff sentence would deter her countrymen here and elsewhere in the world from engaging in drug crimes. The district court essentially adopted this rationale for its sentence. It noted initially, and sensibly, that general deterrence was rarely a big factor in setting a sentence, but went on to adopt the government’s notion that in this case, because of the defendant’s origins, its sentence would serve to deter those of her nationality. The defendant appealed, arguing that it was impermissible to base her sentence on her national origin, and the Circuit agreed.
The Circuit found the case indistinguishable from United States v. Leung, 40 F.3d 577 (2d Cir. 1994), in which the sentencing court had also stated that its intent was to deter members of the defendant’s Asian community. The Court adhered to the rule it had stated in Leung, that while it was permissible for a court to mention the defendant’s race or nationality, it was erroneous to base the sentence on that factor. Here it found that the district court had done the latter. It was permissible for the court to consider the defendant’s life of deprivation and abuse in her homeland in mitigation, as the defense suggested, but not to base the sentence on her “identification with the West African community.”
In addition, also following Leung, the court found the error reversible despite the absence of a defense objection and found that it was necessary to remand for resentencing before a different judge. The Circuit did this, although it found that there was no evidence of actual bias on the district court’s part. It followed Leung’s holding that the possible appearance of injustice required that a new judge be assigned. “If the same judge were to give the same or a higher sentence on remand,” the Circuit wrote, “it would be difficult to avoid the impression that he or she was continuing to base the defendant’s sentence on the defendant’s national origin, at least to some extent.” The Circuit treated Leung as having established “a prophylactic rule meant to assure [that] groups distinguished by their religion, race, national origin or the like … need not fear that one of their number is being treated adversely because of his or her membership in that group,” and thus that it was the “better practice” to remand to a different judge.
(By David Lewis)