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December 12, 2017

Second Circuit panel reverses as unreasonable way-above-guideline sentence for immigration offense

A helpful reader made sure I did not miss a fascinating Second Circuit panel decision today reversing an above-guideline sentence as unreasonable in United States v. Singh, No. 16‐1111 (2d Cir. Dec. 12, 2017) (available here). Here is how the opinion gets started:

In this case, defendant‐appellant Latchman Singh pleaded guilty to one count of illegally reentering the United States after having been removed following a conviction for an aggravated felony.  His Guidelines range was 15 to 21 monthsʹ imprisonment, and both the government and the Probation Office recommended a within‐Guidelines sentence.  The district court, however, sentenced Singh to a term of imprisonment of 60 months ‐‐ nearly three times the top of the Guidelines range.   

Singh appeals, contending that the sentence was both procedurally and substantively unreasonable.  For the reasons set forth below, we vacate the sentence and remand for further proceedings.  Singhʹs request that we order reassignment of the case to a different judge is denied. 

The opinion goes on to thoughtfully explain its substantive and procedural concerns with the sentence imposed; the discussion defies easy summary and lots of passages could merit highlighting. Here is one from the end of the opinion that seemed especially notable:

ʺSentencing, that is to say punishment, is perhaps the most difficult task of a trial court judge.ʺ  Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23 Touro L. Rev. 539, 539 (2007).  While there are many competing considerations in every sentencing decision, a sentencing judge must have some understanding of ʺthe diverse frailties of humankind.ʺ  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).  In deciding what sentence will be ʺsufficient, but not greater than necessaryʺ to further the goals of punishment, 18 U.S.C. § 3553(a), a sentencing judge must have a ʺgenerosity of spirit, that compassion which causes one to know what it is like to be in trouble and in pain.ʺ  Guido Calabresi, What Makes a Judge Great: To A. Leon Higginbotham, Jr., 142 U. Pa. L. Rev. 513, 513 (1993); see also Edward J. Devitt, Ten Commandments for the New Judge, 65 A.B.A. J. 574 (1979), reprinted in 82 F.R.D. 209, 209 (1979) (ʺBe kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people regardless of their other qualities and abilities.  There is no burden more onerous than imposing sentence in criminal cases.ʺ).

To the extent the district court increased Singhʹs punishment because of a perception that in attempting to explain his actions and plead for mercy he did not fully accept responsibility, it committed procedural error.

December 12, 2017 at 09:05 PM | Permalink


"The bench is no place for cruel or callous people regardless of their other qualities and abilities. "

Cruelty and callousness to vicious criminals, no.

Cruelty and callousness to innocent crime victims, no problem.

Posted by: David Behar | Dec 13, 2017 1:01:13 AM

So let's see, we kicked him out, and now he's back, and he's whining. Whatever.

Posted by: federalist | Dec 13, 2017 6:43:25 AM

"Singhʹs request that we order reassignment of the case to a different judge is denied."

This is one of the most deeply flawed rules of American law. No case that is reversed for abuse of discretion should ever be remanded to the same judge.

Posted by: ohwilleke | Dec 13, 2017 10:32:35 AM


While I appreciate the sentiment in general I'm not sure how it applies to this specific case. This is a victim-less crime. He dared to cross an imaginary line. Boo Hoo.

Posted by: Daniel | Dec 13, 2017 11:40:30 AM

It looks like you got a shout out in fn 7 (pg. 27).

Posted by: anonymous | Dec 13, 2017 12:47:23 PM

Daniel. Many thanks for the correction. I stopped reading this stuff a while back. I assume they are all the same.

Posted by: David Behar | Dec 13, 2017 10:19:37 PM


There may be no victim in the sense of someone deprived of life or physically injured but I would argue that we are all his victim. Actually, I wonder if this would be a good case for SCOTUS review to determine if district court judges are really supposed to have discretion or if it's only a pro-criminal thumb on the scale.

Posted by: Soronel Haetir | Dec 14, 2017 2:55:16 AM

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