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April 20, 2005

Interesting Crosby remand from the Second Circuit

With thanks to this comment for the tip, I see that the Second Circuit's remand yesterday in US v. Godding, No. 04-3643 (2d Cir. Apr. 19, 2005) (available here) perhaps merits additional attention.  (Appellate Law & Practice noted this case yesterday here as did the Second Circuit Blog here, and today this article in the Hartford Courant provides a lot more background on the case).

What makes Godding notable is the Second Circuit's stated concerns about the justifications given by District Judge Dorsey for the below-guidelines sentence he imposed pre-Booker:

We are most troubled by the district court's mention of the bank's failure to detect and prevent the embezzlement. While the court expressly stated that it did not rely on this factor in sentencing, we note that consideration of such a factor and the conclusion that it, and not the defendant's volitional acts, rendered the sum embezzled in this case more significant than it otherwise would have been, would lead us to question the reasonableness of a non-guidelines sentence. Godding embezzled a significant sum and we do not think a district court could properly discount Godding's responsibility for the amount by referring to the bank's failure to check the crime. Furthermore, we are more broadly concerned that the brevity of the term of imprisonment imposed by this sentence does not reflect the magnitude of the theft of nearly $366,000 over a five-year period.

Section 3553(a) requires a court to consider, among other things, the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A) (2004). On any appeal taken following this remand, the sentence imposed by the district court below, or any new sentence imposed, will be reviewed, in accordance with United States v. Booker, for "reasonableness."

April 20, 2005 at 11:42 AM | Permalink

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