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November 16, 2007

A significant (unpublished?!?!?) Second Circuit Rita ruling

The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here).  The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita.  Here are some snippets from a strong opinion that, in my view, should be published:

Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines....  The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.

Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines.  The district court did not articulate why a Guidelines sentence was appropriate....

Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.

Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence.  Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.

This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion.  Rita, 127 S. Ct. at 2468-69.  The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.

November 16, 2007 at 01:27 PM | Permalink


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that is strange. Most of the circuit couts are big fans of within guideline sentences.

Posted by: EJ | Nov 16, 2007 6:51:33 PM

This opinion should certainly be published! It's the first opinion that I know of to actually recognize and enforce Rita's instruction that the sentencing judge should "set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority." This is an essential opinion for defendants.

Does the Second Circuit allow for Motions to Publish?

If so, how likely is it to grant such a motion, considering the opinions does not recite the facts but merely states: "We assume the parties’ familiarity with the underlying facts and procedural history of the case."?

Posted by: DEJ | Nov 16, 2007 7:22:56 PM

At the other end of the spectrum of issues concerning 18 USC 3553(c) is the First Circuit's decision yesterday in US v. Arango in which the First Circuit upheld the trial judge's explanation even though it noted that "the court, without explanation, imposed the 262 month term and a $2 million fine on Arango."

Posted by: Gogigantes | Nov 16, 2007 9:09:02 PM

The Second Circuit's Local Rule 32.1 (which was issued on June 26, 2007 and replaced its former Local Rule 0.23) makes no mention of motions to publish.

However, there's no prohibition on bringing such a motion under the court's ordinary motions practice rules.

Since a non-party lacks standing to make that (or any) motion, it would be helpful if the Defendant-Appellant made a motion to publish. Anyone else seeking publication would probably have to file an accompanying motion to intervene for that limited purpose.

Posted by: Def. Atty. | Nov 19, 2007 12:35:46 PM

If the court were to publish, it would probably revise its opinion to come up to its ordinary standards for publication, adding a full description of the facts and procedural history in the process.

Avoiding such work, amid the crush of appellate volume, is of course the reason for summary orders in the first place. But if there's a legitimate reason to publish (as it appears there would be here), there's no reason to think the Court wouldn't be amenable to granting a motion to publish and revising its opinion for publication.

Posted by: Def. Atty. | Nov 19, 2007 12:42:18 PM

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