In United States v. Cavera, 550 F.3d 180 (2d Cir. 2008), the Second Circuit (en banc) considered the interesting issue of when, under federal criminal sentencing in the aftermath of United States v. Booker, 543 U.S. 220 (2005)¸ a sentencing court may properly consider community conditions in varying from the advisory Sentencing Guidelines range. In concluding that such consideration was appropriate in this gun trafficking case, the court vacated an earlier panel decision (United States v. Cavera, 505 F.3d 216 (2d Cir. 2007)), which held that the district court had erred in imposing a non-Guidelines sentence that relied upon a demographics-based approach to sentencing.
Gerard Cavera pled guilty to one count of conspiring to deal in and transport firearms in violation of 18 U.S.C. § 371. When it came time for Cavera to be sentenced, the district court (Eastern District of New York), calculated the Sentencing Guidelines range for the defendant’s offense as 12 to 18 months imprisonment, but, rather than impose a sentence within that range, the district court imposed a more severe sentence outside the Guidelines of 24 months imprisonment. Id. at 185-186. In support of this upward variance from the Guidelines, the district court pointed to factor (a)(2) of 18 U.S.C. § 3553, which instructs the court to consider the seriousness of the offense and the need for deterrence of this type of crime. The district court reasoned that firearm trafficking in an urban environment such as New York City mandated a heavier sentence. Id.
On appeal to the Second Circuit, Cavera argued that the district court had committed legal error by considering the population density of New York City in imposing a non-Guidelines sentence. The panel which heard his appeal reversed, concluding that the district court’s sentence constituted legal error and was unreasonable, noting that the district court’s “demographics-based approach to sentencing” contradicted one of the primary purposes of the Sentencing Guidelines, which is to diminish unwarranted sentencing disparity.
Rehearing en banc was ordered to allow the parties to brief the effect of the intervening decisions in Gall v. United States, 128 S. Ct. 586 (2007) and Kimbrough v. United States, 128 S. Ct. 558 (2007). Based on guidance gleaned from those two rulings, the full Court of Appeals vacated the decision of the panel and affirmed the judgment of the district court.
The court began its analysis by noting that Booker rendered the Sentencing Guidelines “effectively advisory” and allowed sentencing courts to tailor the appropriate sentence to each offense in light of other concerns. Going further, the court explained that, after Gall and Kimbrough, the Guidelines should be considered the “starting point” and “initial benchmark” for sentencing, even though they are “truly advisory.” Id. at 189. Subsequent to the decisions in Gall and Kimbrough, appellate courts play a “clearly secondary” role in determining an appropriate sentence, reviewing the district court’s decisions under a “deferential abuse-of-discretion standard.” Id., quoting Gall, 128 S. Ct. at 591. This analysis consists of both a procedural review and a substantive review of the sentence imposed by a district court.
The court explained that it would set aside a substantive decision of the district court only in “exceptional circumstances” where the district court’s decision “cannot be located within the range of permissible decisions.” Id. However, this degree of deference is only warranted if the appellate court is convinced that the district court complied with the procedural requirements of the Sentencing Reform Act. When conducting a substantive review, the court would take into account the totality of the circumstances, and afford significant deference to the discretion of the sentencing judge, who has a certain institutional advantage. Id. at 190. The court would not necessarily presume that a non-Guidelines sentence is unreasonable or require “extraordinary” circumstances to support a deviation from the range suggested by the Sentencing Guidelines. Id. The court explained that sentencing responsibility “is placed largely in the precincts of the district court,” and noted that Gall and Kimbrough require appellate courts to afford more latitude to sentencing judges than would have been afforded before those decisions.
The Second Circuit then explained that one of the procedural requirements is that a district court must explain its reason for a chosen sentence, and, where the chosen sentence is outside the range of the Guidelines, the court must explain its reasons “with specificity in the written order of judgment and commitment.” Id. at 192, citing 18 U.S.C. § 3553(c). The district judge’s justification for a “major departure” from the Guidelines should be supported with a more significant justification than a minor one. However, as the court noted, “[w]hen all is said and done though, once we are sure that the sentence resulted from the reasoned exercise of discretion, we must defer heavily to the expertise of district judges.” Id. at 193.
The court noted that, in appropriate circumstances, a district court may rely on categorical factors to increase or decrease sentences, and, in particular, the environment in which a crime was committed may inform a district court’s decision as to the appropriate punishment. Id. at 195. The district court here justified its decision to impose a sentence above the Guidelines as necessary to satisfy the § 3553(a)(2) factors on two separate grounds: (i) non-specific geographical and demographic fact that New York City is a large metropolitan area and (ii) New York’s stricter gun regulatory scheme, which, according to the district court, justified a more severe penalty to produce adequate deterrence.
The Second Circuit was divided on the permissibility of the first ground relied upon by the district court, but found it unnecessary to resolve the disagreement because the second ground, deterrence, provided an “independently sufficient justification” for the district court’s decision to impose a non-Guidelines sentence. The court noted that the district judge had addressed the issue of unwarranted sentencing disparities, a major concern of the panel of the Second Circuit, and that the district judge concluded that sentencing disparities among different federal districts were warranted by factors such as the greater need for deterrence in New York, which has a profitable black market for firearms. Id. at 197. In light of the deference owed to district courts, especially after the decisions in Gall and Kimbrough, the Second Circuit found that the district court’s deterrence-based rationale “easily suffices” to justify the non-Guidelines sentence it had imposed. Id.
(With appreciation to Beth L. Weisser, Esq., for contributing this entry)