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March 17, 2008

Looooong Second Circuit ruling finds below-guideline sentences unreasonable

In a long opinion that discusses Booker and Gall at length, the Second Circuit today in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), reverses a pair of below-guideline sentences as both procedurally and substantively unreasonable.  Here is how the majority opinion, per Judge Kearse, ends (on page 77!):

We have considered and found to be without merit the arguments of Cutler and Freedman in opposition to the government's appeal and cross-appeal, respectively, challenging the sentences imposed on them.  Given the procedural errors, the clear factual errors, and the misinterpretations of the § 3553(a) factors discussed above — in particular of the needs to provide just punishment, to afford adequate deterrence of crimes by others, to avoid unwarranted disparities among similarly situated defendants, and to promote respect for the law — we conclude that the court's sentence on Cutler insofar as it ordered him to serve a relatively short term of imprisonment, and its sentence on Freedman insofar as it imposed no term of imprisonment, are substantively unreasonable and constituted an abuse of discretion. Accordingly, the sentences imposed on Cutler and Freedman are vacated, and the matters are remanded for further proceedings not inconsistent with this opinion.

Judge Pooler concurs — in a one-page opinion! — that includes these comments:

I agree with the majority that the two sentences about which we write today must be vacated and the cases remanded to the district court. My disagreement is, in part, with the breadth of the discussion.... Since we find that the district court has not, as yet, imposed a procedurally adequate sentence, my understanding of United States v. Booker, 543 U.S. 220 (2005), and [its progeny] is that it is premature for the appellate court to engage in substantive review....

By concluding that the sentences of Cutler and Freedman are substantively unreasonable, the majority is substituting its view of what their proper sentences are, for that of the district court, an exercise we are reminded is not within our province to accomplish.

March 17, 2008 at 01:52 PM | Permalink


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