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June 16, 2006

Second Circuit reverses below-guideline sentence

The Second Circuit on Wednesday in US v. Rattoballi, No. 05-1562 (2d Cir. June 15, 2006) (available here), thoughtfully and thoroughly discusses reasonableness review at length in the course of reversing a below-guideline sentence.  Here are just a few of the many notable passages in Rattoballi:

[O]n appellate review, we will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or personal to a particular defendant, but instead reflects attributes common to all defendants.  Disparate sentences prompted the passage of the Sentencing Reform Act and remain its principal concern....

A non-Guidelines sentence that a district court imposes in reliance on factors incompatible with the Commission’s policy statements may be deemed substantively unreasonable in the absence of persuasive explanation as to why the sentence actually comports with the § 3553(a) factors....

A sentence must reflect consideration of the balance of the § 3553(a) factors; unjustified reliance upon any one factor is a symptom of an unreasonable sentence.

UPDATE: Yuangchung Lee has a long, critical post of this decision here at the Second Circuit Blog.  Here is how it starts and ends:

Someone please wake us up: We read this opinion and had a nightmare that we lived either in another Circuit or in an alternate universe in which Booker had never happened.  In an extraordinary act of law-making that flouts Booker and contradicts core post-Booker caselaw in the Second Circuit, including Crosby and Fernandez, C.J. Walker, along with former and future C.J.s Winter and Jacobs, writes as if on a clean slate (and as if this were the 7th or 8th Circuits rather than the 2nd) and overturns, for the first time since Booker was decided 17 months ago, a sentence as substantively unreasonable (i.e., just too long). Cynics will not be surprised that this occurred on a Government appeal of a below-the-range sentence, rather than a defendant's appeal of an above-the-range sentence....

As stated at the outset, en banc rehearing of this decision is appropriate in light of its inconsistency with cases such as Crosby and Fernandez. The decision's seeming resurrection of the mandatory Guidelines regime also, of course, contradicts Justice Stevens's merits majority opinion in Booker.

June 16, 2006 at 12:04 AM | Permalink


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Disparity in appellate review, by disparate writing abilities of district court judges results in disparate review and remand in criminal case. In drug cases the courts and the Sentencing Commission, decide that there is a measurable or immeasurable amount of harm done to “those that got hooked on the drugs” id. U.S. v. Valdez, No.04-50499(5th Cir.June 15, 2006), whether there was any victim impact evidence or not. But in the case of fraud or antitrust, the omniscient court does not foretell the victims of the loss of the money, jobs, kids education and even family homes due to the crime. It the essence of criminal statutes that law prescribe punishment for harm done, attempts and even plans to commit a harm to society or individuals. Rattoballi’s crime had immeasurable victims, the companies that lost business due to the kickbacks and were forced to lay-off employees. Rattoballi “live[d] in a nice house and drove a nice car”, see Valdez (“I hear you both asking for mercy because basically this is the rest of your life in prison . . . . [N]obody has asked mercy for those people that got hooked on the drugs that you were moving so that you could make a living, so that you could live in a nice house and you could drive a nice car. What about those folks? Anybody want to ask mercy for them?”) The Valdez brothers received 360 month sentence, (Ceasar’s sentence was vacated and remanded) and the judge recognized that the sentences meant life imprisonment and the appellate court found the sentences reasonable holding “The court may extrapolate the quantity from “any information that has ‘sufficient indicia of reliability to support its probable accuracy,’ including a probation officer’s testimony, a policeman’s approximation of unrecovered drugs, and even hearsay.” Id. (quoting United States v. Huskey, 137 F.3d 283, 291 (5th Cir. 1998) (citing U.S.S.G. § 6A1.3 cmt.)). A life sentence should require more reasonableness review and appellate concern ing than a reason for a sentence to one-year home confinement. The Second Circuit finds Judge Griesa to be unreasonable for failing to inscribe his reasons in the written judgment, there is a disparity in sentencing where one judge can write convincingly and one cannot and where one appellate panel’s reason for remand is not reasonable in another circuit.

Posted by: Barry Ward | Jun 16, 2006 9:47:42 AM


I don't read the Second Circuit's decision as finding Judge Griesa "to be unreasonable for failing to inscribe his reasons in the written judgment." After noting that sec. 3553(c)(2)'s writing requirement remains binding on the district courts, see op. at 26-28, the Second Circuit goes on to explain that it is still an open question in that circuit whether the failure to comply with the writing requirement provides an independent cause for remand, id. at 29. The court leaves for another day the resolution of that question.

Posted by: | Jun 16, 2006 10:11:26 AM

Doug - I beg to differ: The opinion is neither thoughtful nor reasonable. And it is not only inconsistent with Booker itself, but directly contradicts Second Circuit precedent (e.g., Crosby and Fernandez), which it largely ignores in favor of out-of-circuit caselaw. More at www.circuit2.blogspot.com.

Posted by: Yuanchung Lee | Jun 16, 2006 10:28:21 AM

Prof. Berman, as you have often noted, the courts of appeal vitually always reverse sentences below the guidelines and affirm sentences above the guidelines. Notwithstanding, all the pious judicial rhetoric trying to explain away the double standard, you don't have to be a weatherman to see which way the wind is blowing.

Michael R. Levine

Posted by: Michael R. Levine | Jun 16, 2006 10:42:25 AM

While the Second Circuit panel did not explicitly find remand necessary due to the failure to follow §3553(c)(2), the lack of satisfactory reasons in the written statement resulted in the same result, remand.
Professor, I think the court made clear that a district court can justify a non-guideline sentence at any point if his written statement of reasons if persuasive.
“A non-Guidelines sentence that a district court imposes in reliance on factors incompatible with the Commission’s policy statements may be deemed substantively unreasonable in the absence of persuasive explanation as to why the sentence actually comports with the § 3553(a) factors.” Id.
The importance of the statement of reasons, “we emphasize that our own ability to uphold a sentence as reasonable will be informed by the district court’s statement of reasons (or lack thereof) for the sentence that it elects to impose”. Id @ 18
The district court would have been justified in his sentence if he included a compelling statement of reasons. ”[a] district court may be able to justify a marginal sentence by including a compelling statement of reasons that reflect consideration of § 3553(a) and set forth why it was desirable to deviate from the Guidelines. In the absence of such a compelling statement, we may be forced to vacate a marginal sentence where the record is insufficient, on its own, to support the sentence as reasonable.” Id. @ 19
“Give me one good reason”, seldom can be answered satisfactorily, just ask parents. Whether it be a lack of writing or insufficient content, justifying oneself in a brief written statement of reasons seldom can satisfy appellate review. I want to see district court judges put some effort in the “Statement of Reasons” section of J and C’s.

Posted by: Barry Ward | Jun 16, 2006 12:15:58 PM

In determining whether a Federal sentence is reasonable, the decision maker must first determine whether the recommended guideline sentence is reasonable. Since the federal guideline system has little relationship to the way people naturally solve problems, it is virtually impossible to answer this question. To do so is pure speculation. It seems to me that the courts should turn to the cognitive sciences, which have made great strides in the last twenty years, instead of relying exclusively on precedent and the folk psychology of decision-making.
Certainly guidelines are needed, because sentencing is an expression of public policy. A sentence is the deprivation component in an individualized correctional plan. Of course this deprivation component is just one of several components that comprise a complete correctional plan. Other decision-makers in the correctional process supply the other components.
The Federal system misses the point because it does not deconstruct problems, such as robbery and theft, by identifying the ways in which they are provocations. First the subject’s conduct is a crime, which is a classical provocation and rule based. Second the subject’s conduct is a criminal offense, which is a substantive provocation and experience based. Finally the subject is a criminal offender, which is also a substantive provocation and experience based. Together these provocations form a jeopardy argument. People naturally respond to each of these provocations. Some of these responses will be determinate, while others should be indeterminate.
It seems to me that the US Sentencing Commission should just start over now that many of the difficulties with their system have been identified and the cognitive sciences have matured. After all, that is what they promised to do early on, when they were forced to accept a less than adequate system.

Posted by: Tom McGee | Jun 16, 2006 5:41:02 PM

This panel of judges made the right decision. Rattoballi was prepared to testify against his best friend for a non jail sentence. He also beenfited equalt to if not more than defendants in his case who are serving jail time. Important to note is that the highest jail sentence in an Antitrust case was given to his co-defendant Mitchell Mosallem (more than 70 months). Mosallem was a good guy who got caught up helping Rattoballi and now Rattoballi with his connections seeks to benefit by continuing to run his business from home while Mosallem does the time. The Court was correct in their decsion and a decison under the guidelines that is not extraordinary to similarly situated defendants should be overturned.

Posted by: Criminal Justice Student | Jul 19, 2006 3:58:37 PM

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