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August 18, 2009

Second Circuit panel advocates "more flexible approach" to tough guideline determinations

In an intriguing and potentially very important little ruling today, a (two-judge) panel of the Second Circuit in US v. Dharfir, No. 05-5965 (2d Cir. Aug. 18, 2009) (available here), endorses and seems to urge district judges to adopt a "more flexible approach" to the guidelines when sentencing in cases involving "ambiguous circumstances."  Because of its potential impact in lots of settings, Dharfir should be read in full by folks both inside and outside the Second Circuit.  Here is some of the key language:

Given these ambiguities and the contradictory positions the government took at trial and at sentencing, we believe the judge overlooked another permissible approach under our post-Booker jurisprudence.  In United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), we stated that “precise calculation of the applicable Guidelines range may not be necessary [in making a sentencing determination]. . . . [S]ituations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies.”  “This leeway,” we wrote, “should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters, for example, determination of monetary loss.” Id; see also United States v. Cavera, 550 F.3d 180, 190 4 (2d Cir. 2008) (en banc) (stating that omission of the Guidelines calculation may sometimes be justified, citing Crosby); see also Cavera, 550 F.3d at 200 n.4 (Raggi, J., concurring) (explicitly reaffirming Crosby’s approach in this regard).

The factual ambiguities in this case present just these circumstances.  The district court was correct that choosing § 2S1.1(a)(2) rather than § 2S1.1(a)(1) would avoid the odd result that Dhafir would receive a lower sentence if the laundered money was “criminally-derived” than if it was “legally-obtained.”  But post-Booker, there was no need for the district judge to pigeonhole the case into § 2S1.1(a)(2) to avoid an illogical result and run the risk of setting a bad precedent; indeed, there was no need for him to choose between the two at all.  We reiterate here that the district court is not bound in ambiguous circumstances such as these to choose one Guidelines range in particular, and is free to take the more flexible – and often, more direct – approach of arriving at a more appropriate sentence outside the Guidelines.  In light of Booker, the judge could simply look at all of the facts, take both suggestions into account, consider the § 3553(a) factors, and come up with a “hybrid” approach if he so chose.

We do not hold that the district court erred in determining that the appropriate Guidelines provision was § 2S1.1(a)(2) or that the sentence was unreasonable; we remand only to permit the district court to consider whether a different sentence would result from the application of this more flexible approach.

As a general matter, I always thought the Crosby court was wise to permit the occassional guideline-calculation dodge as part of proper post-Booker sentencing.  And yet, I am not sure such a dodge is fully consistent with the post-Booker Supreme Court rulings in Rita and Gall, though obviously this Second Circuit panel still thinks "this more flexible approach" is a permissible (and perhaps even a prefered) way to deal with tough guideline disputes.  I'd be very interested to hear when federal sentencing litigants think.

August 18, 2009 at 11:00 AM | Permalink


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Hasn't SCOTUS repeatedly stated that correctly calculating a guideline range is the mandatory first step, even though that guideline only provides a starting point?

This ruling seems to slide right past that requirement and say that at least sometimes a correct guideline range isn't needed.
PS: I hate pdfs that force the line numbers to be read with the text, though it's better than not being able to access the text at all via voice synth.

Posted by: Soronel Haetir | Aug 18, 2009 11:22:50 AM

I agree with Soronel that the court must come up with what it thinks the technically correct guideline range is. If a(1) was the correct provision the judge should have stated and then noted that it created the odd result and that he was not going to follow it for that reason.
The thing that scares me about this opinion is the implication. Rather than using sentencing discretion to (indirectly) advise the sentencing commission that their guidelines would produce obviously absurd results, the Court of appeals advises a course of action that may solve the issue in this individual case, but avoids letting the commission know that something is amiss with this provision. This is disappointing.

Posted by: KRG def attny | Aug 18, 2009 12:56:15 PM

I am loathe to trot out the slippery slope argument but if a correct guideline calculation is no longer a mandatory first step, what type of orderly sentencing system do we have?

Posted by: mjs | Aug 18, 2009 9:02:39 PM

A-hole left wing ideologues don't know what to do with pack of dogs who killed two old people taking a walk.


Posted by: Supremacy Claus | Aug 18, 2009 11:02:47 PM

So, the federal sentencing guidelines are relevant to feral dogs . . . how?

Posted by: Gray Proctor | Aug 19, 2009 9:36:06 AM

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