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December 10, 2008

Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence

Regular readers and white-collar sentencing fans likely remember the memorable 2006 sentencing decision in Adelson (basics here, comments here right after the sentence was rendered).  In Adelson,  SDNY District Judge Jed Rakoff's granted an huge variance to a corporate president who faced a life sentence under the federal sentencing guidelines after a fraud conviction that resulted in $260 million in losses. 

I just learned from a helpful reader that yesterday the Second Circuit rejected the government's appeal of this sentence (in this summary order), based largely on the strength of the Circuit's work last week in its en banc Cavera decision (basics here, comments here on Cavera).  Here is the heart (indeed, virtually all) of the Second Circuit panel's explanation for why the way-below-guideline sentence in Adelson was reasonable:

 In Cavera, we stated that, “we will continue to patrol the boundaries of reasonableness, while heeding the Supreme Court’s renewed message that responsibility for sentencing is placed largely in the precincts of the district courts.”  Slip op. at 17.  We further noted that for certain kinds of crimes, including — as relevant to the present case — various financial offenses, “a district court may find that . . . there is a wide variety of culpability amongst defendants and, as a result, impose different sentences based on the factors identified in § 3553(a).”  Id.  We explained that “[s]uch district court decisions, if adequately explained, should be reviewed especially deferentially.”  Id.

This is just such a case. After adopting many of the calculations in the Presentence Report, the able district judge properly calculated Adelson’s total offense level and gave due consideration to the Section 3553(a) factors, including the nature, circumstances, and seriousness of the offense; the goal of deterring other potential offenders; and the history and characteristics of the defendant. After carefully considering those factors, the District Court sentenced Adelson principally to 42 months’ imprisonment, a sentence substantially below the applicable Guidelines range of life in prison, and also imposed an order of restitution of $50 million, payable to the company’s shareholders, and directed Adelson to forfeit $1.2 million in criminal proceeds.  The Government argues that in doing so the District Court “discarded the Guidelines in favor of the District Court’s personal view of the seriousness of the offense,” resulting in “fail[ure] to give proper weight to the sentencing factors.” But the record demonstrates that the District Court’s decision to impose a below Guidelines sentence was not a failure or refusal to recognize the Guidelines, but rather a carefully considered reliance on the Section 3553(a) factors.  In doing so, the District Court satisfied the requirements we described in Cavera, and we therefore affirm the sentence.

December 10, 2008 at 10:22 AM | Permalink


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