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November 28, 2006

Second Circuit breathes life into the parsimony provision

I am very pleased to report that, only two years after Booker declared § 3553(a) central to federal sentencing, a circuit court has finally paid some attention to the key operative language of that provision.   Today, in US v. Ministro-Tapia, No. 05-5101 (2d Cir. Nov. 28, 2006) (available here), the Second Circuit talks through the so-called parsimony provision of § 3553(a), which states that the "district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)]."  In Ministro-Tapia, the court states that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher."

Many thanks to Yuanchung Lee for alerting me to this important new decision; Yuanchung gives his take on the ruling here at the Second Circuit Blog.   (Notably, though this ruling is important in the broader parsimony battle, the defendant lost his own personal war: the Second Circuit ultimately rejected the defendant's argument that the district court violated the parsimony command when imposing a within-guideline sentence.)  Yuanchung astutely suggests that "[a]ll practitioners should cite this [parsimony] passage in future sentencing memoranda to district courts" and calls Ministro-Tapia "a clarion call to district courts to impose in each case the lowest sentence necessary to achieve the ends of sentencing."

Some (dated but related) posts on the parsimony provision:

November 28, 2006 at 02:43 PM | Permalink


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Did it breathe life into it, or did the CA2 effectively limit its reach to the improbable situation in which a district judge says outright that he believes that two sentences serve the policies of 3553(a) and selects the higher sentence?

In other words, did the CA2 confine the reach of the parsimony provision to certain magic words from a district court? Where it is less than crystal-clear that a district judge thought that two sentences were equal, it seems to me that an appellate court will presume by the fact of the district judge having selected the sentence he did that he did not believe that a lesser sentence would equally serve the purposes of 3553(a).

I suppose the parsimony provision would also lead to reversal of a sentence where the judge says "I'm giving you an extra 10 months because I don't like your attitude" or "I'm adding a year just for the hell of it," but again, how likely is that to happen?

At best, the CA2 decision serves as a reminder to district courts to consider the parsimony provision, and gives defense attorneys a stock quote for their briefs. It does not present much promise of a reversal by an appellate court where the district courts fail to actually consider it.

Posted by: | Nov 28, 2006 6:02:32 PM

How about if a judge adds 10 years to the maximum guideline sentence because "you stole people's dreams". I have a case with those facts now.

Posted by: grant p. | Nov 29, 2006 1:07:54 AM

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