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May 27, 2009

A quick thought on Judge Sotomayor's sentencing work in Cavera

As I noted in this prior post, Judge Sotomayor is a unique Supreme Court nominee because she personally sentenced federal defendants as a federal district court judge and has also has personally experienced the entire Apprendi-Blakely-Booker-Gall change in federal sentencing as a federal circuit court judge.  Moreover, only six months ago, Judge Sotomayor had an opportunity to share her sentencing insight and wisdom through a notable separate opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here) (Sotomayor opinion starts at page 63 of pdf).

I took the time last night to re-read Judge Sotomayor's separate opinion in Cavera.  For lots of reasons, Cavera is a very hard case that presents a lot of the toughest jurisprudential issues that the Supreme Court dodged in its Booker-Rita-Kimbrough-Gall discussion of advisory guideline sentencing and reasonableness review.  And, for lots of reasons, I was extremely impressed by Judge Sotomayor's judicial craftmanship in her Cavera opinion.  (Aside: Should the term be judicial craftwomanship for Judge Sotomayor's work?)

I hope in future posts to discuss in more detail some of the most notable aspects of Judge Sotomayor's Cavera opinion.  For now, I just wanted to indicate that I consider her Cavera opinion a fascinating and remarkable piece of judging.  The opinion should be read closely not only by sentencing fans, but by everyone seeking a truly informed perspective on the type of jurist that Judge Sotomayor now is.

May 27, 2009 at 09:40 AM | Permalink


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Although Judge Sotomayor's dissent in Cavera was pro-defendant, it is ridiculous to assert that Judge Sotomayor is a "liberal activist" in criminal cases. See, e.g., United States v. Falso, 544 F.3d 110 (2d Cir. 2008) (holding, over Judge Jacobs' dissent (!), that evidence should not be suppressed); United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005) (Sotomayor, J., dissenting) (voting to affirm conviction on ground that error was harmless); Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004) (holding, over a dissent, that criminal was not entitled to habeas relief and finding district court's findings on "actual innocence" clearly erroneous (!)); United States v. Santa, 180 F.3d 20 (2d Cir. 1999) (taking the position adopted by the majority in Herring v. United States, a 5-4 decision this Term).

Compare Judge Sotomayor to then-Judge Alito, who NEVER, not ONCE, voted for a criminal defendant in a non-unanimous case on the Third Circuit.

In my opinion, Judge Sotomayor is likely to move the court to the right in criminal cases, voting for the government in cases where Justice Souter would have voted for the criminal defendant.

Posted by: Guest Poster | May 27, 2009 10:52:54 AM

While Judge Sotomayor's dissent in Cavera would have reversed the above GL sentence, I am not sure it could be called "pro-defendant" (nor would I call it pro-government). I haven't read it carefully since the 2d Cir. issued the opinion, but I have skimmed her opinion in light of her nomination. Prof. Berman is right that it's a hard case. A lot can be gleaned from it.

Based on my recent skim, I have some thoughts and questions:

1) Does Sotomayor's "closer review" concept apply to non-GL sentences that were imposed under non-empirically based Guidelines, even if it was the "mine run" case? I believe the answer should be no. Her dissent doesn't distinguish between rejecting the Commission's policy that resulted from careful study versus rejecting the Commission's policy that was not.

2) Judge Sotomayor's dissent stresses uniformity in sentencing. Yet, in a lot of cases, uniformity leads to an unjust result. Is Sotomayer of the mindset that “uniformity” is the highest goal of sentencing?

3) It seems to me that Judge Sotomayor's dissent can be called "pro-appellate review of district court reasoning." Depending upon the case, this may or may not be appropriate, and Judge Sotomayor seems to recognize this. If the reasoning comes within a district judge's institutional strength, it should be deferred to. If it doesn't, closer review is appropriate. This latter point could be concerning (see point 1 supra).

Posted by: DEJ | May 27, 2009 11:54:16 AM

Wow. What an awful mess that was! I agree with DEJ that the only honest way to characterize her opinion is as pro-appellate review. And I'll agree with her on that. Where I disagree with her is in what that means in light of the advisory nature of the guidlines. If our local Claus wants to go on a diatribe about making work for lawyers, Sotomayor's dissent deserves the full force of such an attack. Her view is neither pro or con towards the defendant; it's best characterized as the "Sentencing Lawyer Full Employment Act." No wonder Doug is so thrilled with it.

Sic, Supremacy Claus, sic.

Posted by: Daniel | May 27, 2009 12:36:59 PM

Unfortunately the linked document is not formatted for text to speech so I am unable to examine it. The funny bit is that the line numbers read out but not the text.

Posted by: Soronel Haetir | May 27, 2009 12:46:40 PM

Apropos of Soronel's point, what's up with CA2 making their online opinions non-searchable?

Posted by: Chris | May 27, 2009 3:53:43 PM

Another way to charactrize J. Sotomayor's reasoning in Cavera is pro-Guidelines.

Posted by: jiffypop | May 27, 2009 4:35:07 PM

Re. Aside: if you search "craftwomanship" in google book you retrieve several examples of use :) see,


(or perhaps just another word ? ... "extremely impressed by judge sotomayor's judicial [skill, adroitness, artistry, craft, dexterity, expertise, facility, imagination, ingenuity, inventiveness, knack, know-how, knowledge, mastery, method, profession, trade, virtuosity ...].")

Posted by: brian | May 28, 2009 12:32:44 PM

that was good really!

Posted by: order acai berries | Jan 21, 2010 3:12:31 PM

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