Thoughtful criticism of Second Circuit white-collar sentence reversal

Last month, as detailed in this post, the Second Circuit issued a long opinion in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), which reversed a pair of below-guideline sentences for white-collar offenders as procedurally and substantively unreasonable. Writing in the New York Law Journal, Alan Vinegrad and Doug Bloom have now produced an extended (and mostly critical) analysis of the Culter case.  Here is a snippet from the analysis (which can be downloaded below thanks to the NYLJ):

In a series of recent decisions, the U.S. Supreme Court has made clear that in establishing "reasonableness" review of sentences, its 2005 Booker decision restored the "substantial deference" that the Court decreed, over a decade ago, was owed sentencing judges.

Last month, however, in its first major application of these decisions to a substantially below-the-range sentence, the U.S. Court of Appeals for the Second Circuit, in United States v. Cutler, gave sharp teeth to reasonableness review, undertaking a searching analysis not only of the district court's sentencing procedure but also of the factual underpinnings and reasonableness of the ultimate sentences....

Cutler seems in tension with another of the Second Circuit's recent descriptions of its approach to reasonableness review.  Just two weeks before Cutler, in United States v. Regalado, the court "confirm[ed] the broad deference that this Circuit has afforded the sentencing discretion of the district courts."  Time will tell whether, or how, these seeming conflicts in the Second Circuit's approach to sentencing review are ultimately resolved.

Download nylj_on_cutler.pdf