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January 8, 2008

Local conditions Cavera case going en banc in Second Circuit

A helpful reader alerted me to the fact that, late last year, the Second Circuit decided (apparently sua sponte) to consider en banc the case of US v. Cavera (05-4591).  As some may recall (and as detailed in posts here and here), Cavera is the fascinating case in which Judge Sifton decided to enhance a sentence above the guideline range in a gun case because he viewed gun possession in urban spots like NYC to be especially bad.  Such "local conditions" considerations would seem to undermine national sentencing consistency, but they also seem like a good idea.  It will be fun to see what the always thoughtful Second Circuit does with this case en banc.

Here is the basic notice from Pacer about the circuit court's collective interest in this case:

12/20/07 Order filed stating On December 3, 2007, a majority of the active judges of the Court voted to hear this case in banc. On December 12, 2007, the Court entered the order that the case be heard in banc.  See Fed. R. App. P. 35(a). The submissions should consider the effect of Gall v. United States, No. 06-7949, 552 U.S. --- (2007), and Kimbrough v. United States, No. 06-6330, 552 U.S. --- (2007).

The petitioner's brief and appendix shall be filed by January 25, 2008.  The respondent's brief, and any briefs amicus curiae, shall be filed by February 22, 2008. The petitioner's reply brief shall be filed by March 7, 2008.  While the briefing schedule of the parties is to be strictly observed, extensions of the time to file briefs amicus curiae will be considered on a case-by-case basis.  Oral argument will be held on March 27, 2008 at 3 p.m. in the Ninth Floor Courtroom of the United States Courthouse, 500 Pearl Street, New York, New York.  We invite briefs amicus curiae from interested parties.

Notably, as detailed here, there was this terrific article in the New York Sun about the case, but the article did not report that the full Second Circuit was now to hear the case.

Because the court asked so nicely, I am already thinking about what I might say in an amicus brief.  I tend to support consideration of local conditions at sentencing, largely because I see the concept of "national sentencing uniformity" almost as a contradiction in terms given diverse federal caseloads and prosecutorial policies in the nation's 94 districts.  But, that said, I do think there have to be some limits regarding how much local conditions can and should eclipse national sentencing norms in the sentencing of individual cases.

January 8, 2008 at 05:18 PM | Permalink


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A "local conditions" consideration is, I believe (and I speak solely for myself on this one), completely consistent with the guidelines which, after all, try to treat similarly situated individuals who have committed similar crimes similarly. Being in possession of a gun in NYC is plainly a different situation from having a gun in the Nevada desert. That being said, though, it seems that such a consideration could work against many indigent defendants (such as many of our office's clients) who live in densely populated urban areas. Please be careful for what you wish for here!

Posted by: Dennis Terez | Jan 8, 2008 7:40:33 PM

For what it's worth, a local conditions consideration is entirely consistent with what Justice Breyer, at least, believes is an essential part of a sentencing judge's discretion. Recall his "rash of burglaries" hypotheticals in the Rita/Claiborne arguments.

Posted by: | Jan 8, 2008 8:09:37 PM

Does this mean that in some states people should get a below-guidelines sentence because isn't that bad?

Posted by: S.cotus | Jan 8, 2008 8:28:24 PM

Given that NYC has effectively disarmed the populace, I think that the judge's decision was eminently reasonable.

Posted by: federalist | Jan 8, 2008 9:00:41 PM

In 1974 I sat in a courtroom in Southern Illlinois and observed how the court there conducted preliminary hearings in a gun case. The court asked the bailiff to hand up the evidence. The judge examined the weapon, opened the cylinder, dumped out the bullets on his desk and asked the defendant to come up to the bench.
"The trooper said he found this in the trunk of the car, is that true? "Yes your Honor". "Thats a nice piece". says the judge as he hands the gun over to the defendant and tells him he is free to go. As the guy was going out the door with the pistol in his pocket, the judge commented to the courtroom and in the direction of the trooper in particular. "Not a crime in my county to keep a gun in the trunk."
Then he pulled his own piece from the drawer at the bench and held it aloft. "Keep one in here myself to keep the peace."

Posted by: | Jan 9, 2008 9:49:30 AM

Seems to me that the answer is easy in one sense: if the effects of a given crime are really worse in one area than in another, Gall discretion surely allows a sentencing judge to impose a different sentence as a result.

The real question in so many cases, though, is the factual one - and the question of who gets to declare what the facts are, about sociological/psychological/etc issues in sentencing. "Illegal gun ownership is particularly problematic in cities, as opposed to rural areas." "White collar criminals are adequately deterred by sentences of severity 'x'." And so on. Quite often, even when the District Court and the appellate judges disagree about these sorts of facts, neither side is really relying on actual empirically based knowledge. Everybody says a lot of things, based on hunch or what seems to them to be "common sense."

So whose factual hunches about social science assertions should take precedence - the District Court's or the appellate court's? After Gall, the answer in a lot of these sorts of questions will be "defer to the District Court, because of its particular institutional role and expertise." But on the other hand, why is there any reason to believe that a District Judge in New York knows anything about the effect of firearms offenses in West Virginia?

Posted by: Sam Heldman | Jan 9, 2008 10:45:28 AM

"Does this mean that in some states people should get a below-guidelines sentence because isn't that bad?"

As the commenter at 9:49:30 notes, that's de facto the case. The US Attorneys from the Fourth Circuit (who go gangbusters on minor crack offenses committed by blacks) simply will not prosecute gun trafficking cases. That has to be done in northern, where people are getting shot by the guns.

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