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April 4, 2006

Major reasonableness ruling from the Second Circuit

While was was flying over the Second Circuit on my way to Boston for this HLS event, that court released a major ruling about post-Booker sentencing and reasonableness review in US v. Fernandez, No. 05-1596 (2d Cir. Apr. 3, 2006) (available here).  Authored by Judge Jose Cabranes, who has long been among the most effective judicial critics of the guidelines, Fernandez continues the Second Circuit's tradition of issuing long opinions with thoughtful perspectives on post-Booker issues.

Fernandez affirms a long within-guidelines sentence over the defendant's objections; along the way, the opinion covers a lot of important post-Booker ground.  For example, concerning reasonableness review, the Fernandez court says (lots and lots of cites omitted):

We recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances. Nonetheless, we have expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness. We therefore decline to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable.

Although the Guidelines range should serve as a benchmark or a point of reference or departure, for the review of sentences, as well as for their imposition, we examine the record as a whole to determine whether a sentence is reasonable in a specific case.  Accordingly, we do not hold that a Guidelines sentence, without more, is "presumptively" reasonable.

The Fernandez court also has much to say about co-defendant disparity and appropriate sentencing considerations under 3553(a).  I suspect this passage, for example, may show up in a lot of future briefs:

At Fernandez's sentencing hearing, the Government conceded that "under 3553(a) the Court's empowered to consider virtually any factor in sentencing."  Tr. at 12.

We agree that in formulating a reasonable sentence a sentencing judge must consider "the history and characteristics of the defendant" within the meaning of 18 U.S.C. § 3553(a)(1), as well as the other factors enumerated in § 3553(a), and should take under advisement any related arguments, including the contention that a defendant made efforts to cooperate, even if those efforts did not yield a Government motion for a downward departure pursuant to U.S.S.G. § 5K1.1 ("non-5K cooperation").  Section 3553(a)(1), in particular, is worded broadly, and it contains no express limitations as to what "history and characteristics of the defendant" are relevant.  This sweeping provision presumably includes the history of a defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation.

For additional review and commentary on this important decision, which has many more facets than I can reasonably cover in this space, check out posts at the Second Circuit Sentencing Blog and the Second Circuit Blog.

April 4, 2006 at 04:10 PM | Permalink


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Justice Stevens and a majority of the Supreme Court found mandatory application of the Guidelines to violate defendants rights to proof beyond a reasonable doubt of guilt or an admission by the defendant, the remedy was to remove the mandatory language from the guidelines. Judge CABRANES, took the literal language of the Booker ruling, Part I and removed the authority to review guidelines violations and left only review of sentences “imposed in violation of law” 18 U.S.C. 3742(a). The Cabranes remedy applies both Part I and II of Booker, elimination of the mandatory language from the Guidelines application and review. The amended version looks something like this:
18 U.S.C. § 3742(a) provides:
A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if
the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range . . . ; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
Now, if the Sentencing Commission would amend the Guideline Manual to reflect the Supreme Court’s advisory only guidelines, we would be able to carry the tome in our shirt pocket.

Posted by: Barry Ward | Apr 5, 2006 8:00:45 AM

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