Making sense of the Second Circuit's second thoughts on Booker

Last week I noted here that the Second Circuit issued this revised decision in its important variance case of United States v. Cavera (previously discussed here). Helpfully, the New York Law Journal has this new article, entitled "Mindful of 'Booker,' 2nd Circuit Revises Sentencing Opinion," which provides some background on the revised Cavera ruling.  Here are some interesting particulars:

In June, Judges Richard Cardamone, Guido Calabresi and Rosemary Pooler reversed Eastern District of New York Judge Charles Sifton, who had gone above the guidelines range of 12-18 months and given two years in prison to Gerard Cavera after he pleaded guilty to conspiracy to deal in and transport firearms.

Sifton's mistake, the panel said in June, was that he considered New York City's population density and reasoned that gun trafficking there required a heavier sentence.  The circuit panel, in a decision by Cardamone, initially said Sifton's approach ran counter to one of the chief purposes of the guidelines -- to reduce disparity in sentencing across the nation's federal districts.

But in a new opinion released Oct. 11 in United States v. Cavera, 05-4591-cr(L), the court said its June opinion "prompted comments from several members" of the circuit, so it was withdrawing the old opinion as well as a concurring opinion by Calabresi.  "The best I can understand is that, after they issued the first decision, other judges looked at this and said, 'Look, this is a critical issue for sentencing purposes and the decision itself doesn't really cover all the issues that are necessary to set precedent,'" said Jeffrey Rubin, who represented Cavera.

The circuit's new opinion does not change the result -- a remand to Sifton for resentencing. However, Rubin said it is less sweeping in its language than the first ruling and focuses more on limiting the holding to the facts of Cavera's case.   In the June opinion, for example, the court said the sentence was unreasonable because the lower court relied on "community-specific characteristics," such as population density.  But in the second opinion, the circuit states, "Under the circumstances of this case, the district court's reliance on the simple fact of population density to impose a non-guidelines sentence constitutes legal error and rendered the defendant's sentence unreasonable."

I suppose this judicial history suggests that, at least in the Second Circuit, it may sometimes be reasonable for a sentencing court to rely on "community-specific characteristics" after Booker.  Very interesting.