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December 4, 2008

En banc Second Circuit hands down Cavera, the "local conditions" sentencing case

Thanks to a helpful reader, I just discovered that the Second Circuit today handed down its en banc opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here).  Regular readers may recall this case, which has been confounding the Second Circuit for quite some time and was heard en banc way back in March. 

The case raises the question of whether a federal judge can reasonably justify an above-guideline sentence based on the local conditions (basics blogged here).  And because it involves a gun crime sentencing in the New York area, the opinion might intrigue Mayor Bloomberg and Plaxico Burress and a host of others beyond just hard-core federal sentencing nuts.

The full decision runs 77 pages (including what appear to be a total of five separate opinions), and I will surely need a lot of time to consume its grandeur and assess what it means for sentencing in the Second Circuit and elsewhere.  But I am certain this is today's must read for everyone working in the federal sentencing vineyards.

December 4, 2008 at 12:09 PM | Permalink


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After reading through most of the opinions I don't actually think there is much new or groundbreaking here.
The key element of the majority decision is on page 13 lines 15-16 and lines 20-21. Once that assumption is made, then the rest of the decision follows. I am sympathetic to Judge Straub's dissent but I can't agree that the facts are so tenuous as to fail reasonableness review, not in light of the position taken by the majority in the lines noted above. In a circuit where within-guidelines sentences were per se reasonable, I think his dissent would carry the day. But not here.

Posted by: Daniel | Dec 4, 2008 7:52:35 PM

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