United States v. Toohey, Docket No. 05-4688-cr (2d Cir. May 17, 2006) (Winter, Cabranes, Raggi): In light of the Circuit’s extremely lax standard for determining whether a sentencing court has fulfilled its obligation to “consider” the Section 3553(a) factors in imposing sentence as required by Booker, see, e.g., United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (appellate court will assume that the requisite consideration has been made, even where record is silent); United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (same), this may be the first decision by the Circuit vacating a sentence on the ground that record suggests that the district court failed to consider the Section 3553(a) factors in imposing the 15-month sentence (the bottom of the applicable Guidelines range). But the circumstances were odd and unlikely to recur with any frequency: The sentencing followed two earlier remands in which the Circuit vacated below-the-range sentences, and the district court’s comments at sentencing suggests that it may have misunderstood that a Guidelines sentence was somehow required by the Circuit’s earlier decisions. See Op. 5. In any event, the Court ruled that “where the record indicates misunderstanding by a district court as to the statutory requirements and the sentencing range or ranges that are arguably appliable, or misperception about their relevance, we may conclude that the requisite consideration has not occurred.” Op. 4.
And in a footnote, the Circuit once again dodges (i.e., leaves open) the question of whether co-defendant disparity may be considered under Section 3553(a)(6) in imposing a non-Guidelines sentence. Op. 7 n.1.