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December 21, 2010

Lengthy discussion of modern sentencing challenges by split Second Circuit

The Second Circuit has an extended discussion of a variety of sentencing issues today in US v. Preacely, No. 09-2580 (2d Cir. Dec. 21, 2010) (available here).  Providing a sign of the modern federal sentencing times, all three judges on the panel in Preacely author opinions to explain their views of how to review a below-guideline sentence imposed in a seemingly routine drug case. 

Tellingly, Judge Lynch authors a concurrence to "put into ordinary language the common-sense basis of the sometimes arcane or technical analysis required by our somewhat complex law of sentencing."  And Judge Raggi's closing paragraph in her dissent effectively details what all the sentencing hub-bub is about:

Like my colleagues, I recognize that Preacely received a severe sentence despite his significant cooperation and efforts at reformation.  I also recognize that other judges might have accorded these factors greater weight in mitigating the seriousness of Preacely’s crime and his risk of recidivism.  What I do not recognize is any basis in the record for thinking that the balance struck by the district court is infected by procedural error, specifically, by possible misapprehension as to the court’s authority to depart from the Career Offender Guideline.  Thus, while I see no reason to remand even for clarification, I specifically dissent from the majority’s decision to vacate and to order resentencing.

December 21, 2010 at 11:06 AM | Permalink


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The district court judge acted unreasonably. What did Mr. Preacely not do that we would have liked him to do to ensure that he would not return to his life of crime. In fact, he did EVERYTHING one would expect of him, and MORE. So, how was he sentenced? To 94 months imprisonment. Now there's some great incentive for people to improve.

The district court said the 94 month sentence was appropriate due to his record. I would have no problem with that conclusion had Mr. Preacely not completely (and seemingly uncontestedly) turned his life around. In even the opinion of several DAs (who are the most skeptical of advances), the prior record he accumulated was in no way reflexive of person he was at sentencing.

I think it comes down to this question: why is criminal history important in sentencing for instant offenses (and undoubtedly, IMO, it is)? It's because it serves as a proxy for future risk of recidivism and shows an enhanced need to protect the public. But, in this case, there are other overwhelming considerations to show that such concerns are drastically reduced. So, yes, while the district court was "dealing with a Category VI career offender," the record also clearly shows that "protect[ing] the interests of the public" did not warrant any additional imprisonment.

In that limited respect, Judge Lynch is absolutely correct: "The career offender guideline is based on the likelihood that someone falling into that category presents an extreme danger of committing more crimes. Preacely, however, presented substantial evidence that he had reformed, and no longer presented such a danger. ... Yet the district court seems not to have recognized this point, and in weighing what sort of sentence was appropriate for him in light of his cooperation emphasized only that the guidelines treated him as a “category VI” offender, ... which the district court appears to have treated as a definitive declaration of Preacely’s likelihood of returning to criminality."

What good, at all, comes from putting this individual back into incarceration? What parts of 3553(a)(2) are served by making this defendant serve an additional day in jail? It would be absolutely counter-productive, and the district court acted unreasonably in doing so.

Posted by: DEJ | Dec 21, 2010 12:38:09 PM

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