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October 13, 2006

Second Circuit finds above guideline sentence reasonable

Today in US v. Pereira, No. 05-5969 (2d Cir. Oct. 13, 2006) (available here), the Second Circuit continued the pattern of appellate courts affirming above-guideline sentences as reasonable after BookerPereira is troubling for various reasons:

First, Pereira seems to apply a review standard other than just reasonableness as required by Booker.  Citing a bunch of pre-Booker precedents, it seems to demand that the defendant show the sentence was infected by "egregious and obvious" error. This seems quite misguided.

Second, Pereira indicates that a "cursory" explanation is sufficient for an above-guideline sentence, even though that explanation never addressed the parsimony provision of 3553(a), nor really explained how an above-guideline sentence comported with any of the 3553(a) factors.

Third, nothing in the Pereira facts reveals anything special about the defendant to justify an above-guideline sentence (indeed, the guideline range was greatly elevated by 16-levels based on a questionable guidelines interpretation).  Consequently, Pereira is in tension with the Second Circuit's work in Rattoballi and Castillo, both of which reversed below-guideline sentences and stated that there needed to be something individually special about a defendant to justify a non-guideline sentence.

UPDATE:  The Second Circuit Blog here notes another ugly feature of Pereira.  And the Second Circuit Sentencing Blog here responds to Pereira by asking "is the Second Circuit serious?"

October 13, 2006 at 03:17 PM | Permalink


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The opinion cites Rattoballi and explains its standard of review somewhat in the footnote at p. 19... I'm not familiar with Rattoballi... does the explanation work?

As I read Castillo, however, the opinion made a distinction between permissible and impermissible reasons for departing from the USSG advisory sentence. The reason given in Castillo was impermissible and thus the decision was reversible. The reason in Pereira was permissible, so the court only looks to the district court's application of that reason in the present case, under a more deferential standard of review.

Pereira's also a strange case, because Pereira seems to have waived all of the arguments that would have helped him. See, e.g., p. 8 n.5, p.20. Instead, he appealed on reasonableness grounds a sentence that was only 11 months beyond the (now-advisory) USSG range, and that was given at least facially for reasons relating to the facts of the individual case. It sounds like his appeal was DOA.

Posted by: formerclerk | Oct 13, 2006 3:36:36 PM

Former clerk: Next time you are confined somewhere "for only 11 months" longer than you were supposed to be, I'll ask again whether you feel your treatment was reasonable.

Also, if you can connect the purported "permissible reason" for the increased sentence to the actual facts, I'll be impressed.

Posted by: Doug B. | Oct 13, 2006 3:40:28 PM

While I am a huge fan of this blog, I am disappointed with your cursory review of this well-reasoned decision. The court goes to great pains to note that the defendant failed to raise any objections below. Rather than deciding whether plain error or a less standard applies, the court holds that the sentence is reasonable under any standard that it applies. Its language about "egregious and obvious" error relates to its discussion of unpreserved error. See Op. at 14. The court does not announce a new standard for reasonableness.

Posted by: | Oct 13, 2006 4:21:46 PM

I take your point. As I read it, the "permissible reason" is the district judge's cursory explanation paraphrased at p. 19--the facts of the case before her warranted a 62-month sentence. As the panel reads Goffi, no more is required (perhaps unfortunately). If it misreads Goffi, then the Second Circuit Sentencing Blog is correct to say that Pereira represents a new "'low' in what the Second Circuit considers sufficient for adequate consideration of 18 U.S.C. ยง 3553(a)." That, to my mind, is the problem with Pereira, not any conflict with Castillo, which is the point I tried to make earlier.

Presumably, had the district judge in Castillo said something opaque and cursory like "given the defendant's conduct, likelihood of rehabilitation, etc., I find that 87 months in prison is a reasonable sentence," that would have been fine. Instead, the district court said something more along the lines of "there's nothing special about this individual case, but I think that the USSG crack guidelines are unjust," which the 2d Circuit said was in error. If this is correct, then I see no tension with Castillo, only a strange incentive to district courts to write cursory sentencing opinions.

My "only" comment wasn't meant to belittle how much it sucks to be behind bars for 11 months (though I concede it probably has that effect), but rather to make the point that the Pereira case seems to imply (p. 19 above the margin, citing Rattoballi) that the less a sentence deviates from the guideline range, the less skeptical a court of appeals is likely to be as to its reasonableness. As you've documented on your blog, this effect doesn't appear to be symmetrical between above- and below-guideline sentences, but it's still there.

Posted by: formerclerk | Oct 13, 2006 5:51:13 PM

As the trend of approving nearly all above-guideline sentences continues, I wonder... have the Courts of Appeal legislated from the bench the topless guidelines system the DOJ seeks? They certainly seem to be disdaining the actual will of Congress as expressed in the controlling statute, 18 U.S.C. 3553.

Posted by: Osler | Oct 13, 2006 6:28:24 PM

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