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June 6, 2007

Fascinating Second Circuit case reversing above-guideline sentence

The Second Circuit today in US v. Cavera, No. 05-4591 (2d Cir. June 6, 2007) (available here), issues a lengthy ruling — with a notable concurrence from one of my former bosses — on post-Booker sentencing standards.  Here is how it begins:

This appeal prompts us to write further on the subject of federal criminal sentencing in the aftermath of United States v. Booker, 543 U.S. 220 (2005). All agree that Booker removed the mandatory teeth of the United States Sentencing Guidelines (Guidelines) by rendering them advisory, and that Justice Breyer's remedy opinion put some bite back into the Guidelines by requiring courts when sentencing defendants to "consider" them.  See id. at 259-60.  We, like our sister circuits, are still putting flesh on the skeleton issue of what it means to consider the Guidelines, and -- as we address specifically in this case -- when and under what circumstances a district court may impose a non-Guidelines sentence.

Among many interesting aspects of Cavera is that it was argued way back in May 2006.  I have an inkling that this ruling was being held pending a Supreme Court decision in Claiborne.  But now that it is unclear, after Claiborne's dismissal, whether and how the Supreme Court will addresses reasonableness review for non-guidelines sentence, the panel in Cavera perhaps sensibly figured it needed finally to resolve this appeal ASAP.

UPDATE:  This post provides a nice long write-up about Cavera at the Second Circuit Sentencing Blog.

MORE: The New York Law Journal has coverage of Cavera that's right now available at this link.

June 6, 2007 at 12:06 PM | Permalink

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