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May 14, 2010

Why the Second Circuit's Dorvee reasonableness ruling could (and should) be so significant

The New York Law Journal has this new piece, headlined "2nd Circuit Faults Pornography Enhancements, Vacates Sentence," which reports on the significant Dorvee reasonableness ruling from earlier this week (basics here).  Because it only covers the basis, this NLYJ piece does not give a full sense of why the Dorvee ruling could be so significant.  I will try to provide a brief account in this post.

In the five years since Booker, circuit court have through their reasonableness rulings essentially turned the guideline range into what might be called a sentencing "safe harbor."  Though circuits have said only that within-guideline sentences will be presumed reasonable (and a few circuits have even resisted this formal presumption), for all practical purposes district judges know that decisions to impose within-guideline sentences will never be found substantively unreasonable.  Put differently, circuits have functionally treated a sentence within a properly-calculated guideline range as per se reasonable.  (There have been a few Ninth Circuit cases reversing within-guidelines sentences, but on quirky facts, and all other circuits have affirmed all within-guidelines sentences against many sensible substantive attacks.)

Now along comes Dorvee, which expressly states that the child porn guideline is beset with "irrationality" and that  "unless applied with great care, [this guideline] can lead to unreasonable sentences that are inconsistent with what § 3553 requires."  Slip op. at 16, 19.  The Dorvee opinion further explains that by "concentrating all offenders at or near the statutory maximum, [this guideline] eviscerates the fundamental statutory requirement in § 3553(a) that district courts consider 'the nature and circumstances of the offense and the history and characteristics of the defendant' and violates the principle, reinforced in Gall, that courts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct."  Slip op. at 19.  And the Dorvee opinion finishes up by reiterating that the child porn guideline is an "eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results."  Slip op. at 21 (emphasis added).

All this anti-guideline language in Dorvee, as well as the relatively aggravated facts involved in the Dorvee case (because the defendant seemed eager to commit a contact child sex offense), leads me to assert that now in the Second Circuit, district judges ought to view the child porn guideline as an inherently "unsafe harbor."  The Dorvee ruling, in my view, suggests that a district court must articulate a very strong and special reason to sentence within the child porn guideline in a downloading case for such a sentence to be upheld as substantively reasonable.  This reality makes Dorvee a huge deal for hundreds of child porn sentencing cases, especially if district courts outside the Second Circuit are influenced by the opinion.

More significantly, both the language and logic of the Dorvee need not and probably should not stop with just the child porn guideline.  Though many parts of Dorvee focus on unique aspects of the child porn guideline, there are other guidelines that tend to concentrate many offenders at or near the statutory maximum.  In particular, in all cases with sizeable loss amounts, the fraud guidelines have a tendency to place many defendants in the life sentence range (and beyond).  I suspect effective white-collar counsel in the Second Circuit (and perhaps elsewhere) will be quick to cite Dorvee to support arguments that the fraud guidelines, like the child porn guidelines "can easily generate unreasonable results."

May 14, 2010 at 02:08 PM | Permalink


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I’m no expert on the en banc rules, but I wonder if some of the other Second Circuit judges feel compelled to have a look at this decision. The judges in Dorvee seemed eager to make a point that went beyond the circumstances of this particular case. And as you’ve noted, Dorvee was hardly the most sympathetic defendant to have fallen under the wheel of the child porn guidelines.

I write this, by the way, as one who agrees strongly with the Dorvee majority. I’m just wondering whether the rest of the Second Circuit judges would concur.

Posted by: Marc Shepherd | May 14, 2010 4:15:17 PM

I think Dorvee can be read to go even farther than Prof. Berman suggests: it in fact requires courts to do what the Federal Defenders call deconstructing the Guidelines, i.e. examine how a Guideline came to be and decide what deference, if any, to give the Guideline based on how carefully it was developed.

Language from Dorvee I recently quoted in a brief on loss amounts in a fraud case maintains that courts should second-guess the Sentencing Commission and consider the Guidelines on a “case-by-case basis” to assess the weight they deserve. Here is Dorvee at 97-98 with cites omitted: "The Sentencing Commission is, of course, an agency like any other. … [D]eference to the Guidelines is not absolute or even controlling; rather, like our review of many agency determinations, '[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' On a case-by-case basis, courts are to consider the “specialized experience and broader investigations and information available to the agency” as it compares to their own technical or other expertise at sentencing and, on that basis, determine the weight owed to the Commission's Guidelines."

In contemporary fraud cases, consideration of the Commission's “specialized experience and broader investigations and information” reveals that the Sentencing Commission’s loss-driven approach to fraud cases is entitled to little or no weight because the Sentencing Commission increased fraud sentences without regard for empirical data or national experience. My client got probation and community service in the teeth of a 21-month Guideline.

Posted by: Zachary Margulis-Ohnuma | Jul 22, 2010 10:37:28 PM

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