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February 16, 2006

The Second Circuit on reasonableness review

While other circuits have said a lot lately about reasonableness review — e.g., this month we've seen big rulings from the Third Circuit and Fourth Circuit and others on the topic — the Second Circuit has been notably quiet in this arena.  Through its potent and powerful Crosby decision last February, the Second Circuit did path-breaking work only weeks after the Booker ruling.  But since Crosby, the Circuit has not had a leading role in shaping the look of reasonableness review.

And yet, thanks to a reader pointing me to the unpublished opinion in  US v. Claudillo-Marquez, No. 05-4102-CR, 2006 WL 224182 (2d Cir. Jan. 30, 2006) (available here), I now see the Second Circuit recently had this interesting and important riff about reasonableness review:

Reasonableness review has two components: (1) procedural reasonableness, whereby we consider such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a); and (2) substantive reasonableness, whereby we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a). United States v. Crosby, 397 F.3d at 114-15....

"Because 'reasonableness' is inherently a concept of flexible meaning," United States v. Crosby, 397 F.3d at 115, the reasonableness standard of review is necessarily "deferential," United States v. Canova, 412 F.3d 331, 350 (2d Cir. 2005).  Although this court has recognized the possibility that a sentence within prescribed statutory limits may, nevertheless, "exceed the bounds of 'reasonableness,'" we have emphasized that "we anticipate encountering such circumstances infrequently." United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).

February 16, 2006 at 05:05 PM | Permalink


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While not a reasonableness review, the Fifth circuit did find a defendant’s Sixth Amendment rights violated in U.S. v. Cain, No. 05-30003, (5th cir. Feb. 15, 2006)
“We find that Cain’s Sixth Amendment rights were violated because the jury did not necessarily find that Cain aimed a firearm at the officers or otherwise engaged in conduct that constituted an assault that created a substantial risk of serious injury. First, the superseding indictment does not allege that Cain brandished a firearm at the pursuing officers, only that he brandished the weapon in connection with a drug trafficking crime. Second, although the jury charge included an instruction on “brandishing,” this instruction did not require the jury to find an “assault” that “created a substantial risk of serious bodily injury” such that a conviction on this count would also support an enhancement under U.S.S.G. § 3A1.2(b).5 Finally, there is nothing in the jury verdict form that would indicate that the jury found that Cain brandished his weapon in such a way as to constitute an “assault” on the police officers”.6
The indictment did not allege brandishing, but neither did the indictment in HARRIS v. UNITED STATES, 536 U.S. 545 (2002) where the enhancement was affirmed. Is the Fifth Circuit deciding to become a player in the circus Booker has created or are they like recalcitrant children who see a new teacher in the Constitutional law class.

Posted by: Barry Ward | Feb 16, 2006 5:17:40 PM

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