New York Federal Criminal Practice Blog
December 10, 2008

Second Circuit, Affirming Upward Variance in Gun Case Based on Local Conditions, Issues Important Decision on District Court’s Sentencing Discretion

Gerard Cavera, a Florida retiree in his seventies who illegally sold guns destined for the New York black market, has felled more than one tree in litigation over the district court’s decision to impose a sentence above his guideline range because of its conclusion that firearms trafficking is a more serious offense and requires greater deterrence in the Eastern District of New York.  In the latest installment, the Second Circuit in an en banc decision (with no less than six separate opinions) has vacated its prior opinion and affirmed EDNY Judge Sifton’s original sentence.  In light of the Supreme Court’s rulings in Gall and Kimbrough, which had come down in the interim, the majority held in United States v. Cavera, 05-4591-cr, 2008 WL 5102341 (2d Cir. December 4, 2008), that “in appropriate circumstances,” district courts may rely on locality-based categorical factors to increase or decrease sentences.  Here, the Court found that the upward variance was justified by the need for greater deterrence in areas like New York with restrictive gun laws.  (Given the level of disagreement within the Court, it did not decide the issue of whether the variance was separately justified on Judge Sifton’s other ground, that firearms trafficking generates more harm in densely populated areas.)

The case is a fascinating examination of the issue of locality-based sentencing.  More significantly, it is an important reiteration and development of the principle that “a sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime.”  While some fear the decision may unleash even more severe sentences than those called for under the Guidelines, defense lawyers can take solace in (and creative inspiration from) the majority’s caveat that “sentencing discretion is like an elevator in that it must run in both directions.” 


Cavera, an army veteran living in Florida, pled guilty to firearms trafficking arising out of his sale of sixteen guns in a sting operation.  The Guidelines recommended a sentence of 12 to 18 months, and after giving the parties notice and an opportunity to address the issue, Judge Sifton imposed a sentence of 24 months, citing the “crying need to do what can be done to deter gun trafficking into the large metropolitan area[s] of this country.”  In a separate opinion, Judge Sifton explained his decision in terms of two § 3553 factors: Cavera’s offense generated more harm than the same offense nationally because the firearms were being smuggled into an urban market (citing statistical studies of homicide rates in urban areas), and there was a greater-than-average need for deterrence in this case because New York’s strict gun laws created a “larger black market” for guns than in places with less strict laws.  Cavera appealed (although presumably thanking his lucky stars at the same time that he had been prosecuted federally), and the Second Circuit panel assigned to the case reversed for procedural and substantive unreasonableness.  En banc review ensued.


In a nutshell, the majority held that in light of the Supreme Court’s decisions in Gall and Kimbrough, it was not an abuse of discretion for Judge Sifton to rely on a categorical, locality-specific factor to increase Cavera’s sentence – specifically, the conclusion that a more severe penalty is necessary to produce adequate deterrence of firearms trafficking in New York.  Because the Court was divided on the issue of whether the upward variance was also justified based on the harm generated by firearms trafficking in urban areas, the Court did not decide that issue.  But in a concurrence joined by three other judges, Judge Raggi wrote to clarify “that the district court also acted well within its discretion in finding that local circumstances rendered Cavera’s gun trafficking more serious than the mine-run case reflected in the Sentencing Guidelines’ recommended 12-18 month prison range.”  In dissenting opinions joined by Judges Cardomone and Pooler, Judges Straub and Sotomayor conclude that the district court’s conclusions do not follow from the factual data Judge Sifton cited, and therefore they fail a reasonableness review. 


While the case may certainly embolden the punitive-minded, it also gives a shot of adrenaline to those judges who abhor the remorseless rigidity and frequent cruelty of the Guidelines, not to mention the embarrassment of America’s incarceration rates.  In addition to repeated references to the “wide latitude” afforded sentencing judges and their “institutional advantages,” Cavera is choc-full of scope for creative sentencing advocacy, including the following conclusions and suggestions:

  • No factors, other than invidious ones, are out of bounds in sentencing determinations: Procedurally, “we will not categorically proscribe any factor ‘concerning the background, character, and conduct’ of the defendant, with the exception of invidious factors.”  Substantively, “we consider whether the factor, as explained by the district court, can bear the weight assigned it under the totality of circumstances in the case.”  OK, so the Court will know an excessive sentence when it sees it.  But that doesn’t change the fact that defense lawyers and judges must first throw the ball, and that the boundaries of excessiveness may turn out to be far more liberal (and easier to push) than expected.


  • New lease of life to policy disagreements and categorical variances:  After Kimbrough, “a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.”


  • Locality-based factors not proscribed: Although the Court did not decide whether it was appropriate for Judge Sifton to consider the New York-specific factor of population density at Cavera’s sentencing, the Court did approve “the New York-specific rationale that the local gun regulatory scheme created a heightened need for deterrence in this case.”  In fact, as Judge Raggi points out in her concurrence, if only invidious factors are off-limits at sentencing, then “a district court’s consideration of local circumstances in assessing § 3553(a) factors cannot, by itself, manifest procedural error.”  So, how about the New York-specific factor that the incarceration – as opposed to non-custodial intensive rehabilitation – of young minority non-violent male offenders adversely impacts urban communities more by removing much needed male role-models?


  • Silence from the Sentencing Commission is not the equivalent of consideration:  Disagreeing with the dissenters, Jude Raggi, points out in her concurrence: “until [the Commission affirmatively says a particular departure is unwarranted], there is no legal support for us to conclude that Commission silence signals an intent to preclude judicial consideration of particular facts, and certainly no factual support to conclude that such silence is informed by the sort of empirical and experiential study that Kimbrough referenced as a basis for ‘closer review’ of a non-Guidelines sentence.”


  • Rigidity and blanket application of Guidelines questioned, with a special nod to white collar cases:  In the context of discussing the power of the sentencing judge to disagree with the Guidelines on policy grounds, the Court notes that “some Guidelines enhancements and reductions apply without modulation to a wide range of conduct,” and goes on to highlight the “drastic” variations in fraud and theft cases “based simply on the amount of money involved.”  Accordingly, the Court will review “especially deferentially” any sentences imposed that are designed to take into account the “wide variety of culpability amongst defendants.”  In other words, downward variances like the one we saw recently in EDNY Judge Block’s Parris decision (discussed here) have a high likelihood of passing muster in the new sentencing universe.


  • Upward adjustments and variances based on factors outside defendant’s knowledge should be challenged: Although the Court did not expressly hold in Cavera that more severe sentences may only be imposed based on factors of which the defendant had knowledge, it is noteworthy that both the majority opinion and Judge Raggi’s concurrence make a point of highlighting that Cavera knew the guns he sold were destined for New York.  In fact, in the majority opinion, the Court cited this fact as its ground for holding that “there was no abuse of discretion in the court's decision to consider New York market conditions in order to accomplish the goal of general deterrence,” – a goal, it should be noted, that is concerned with public perceptions not individual intent.  This gives new life to the challenge of guideline enhancements and upward variances based on factors of which the defendant did not know (see a discussion of this topic and EDNY Judge Weinstein’s Handy decision here). 


  • New even more deferential substantive reasonableness review standard established: “We will instead set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions’ . . .  To the extent that our prior cases may be read to imply a more searching form of substantive review, we today depart from that understanding.”


  • Reasonable justification for variance does not require scientific certainty, or, indeed, anything in particular: The sentencing judge must explain its reasons for the chosen sentence, bearing in mind that “a major departure [from the Guidelines] should be supported by a more significant justification than a minor one.”  But the Court explicitly does not prescribe how these reasons are to be explained or even arrived at (“[s]entencing is a responsibility heavy enough without our adding formulaic or ritualized burdens” and, as Judge Raggi adds in her concurrence, “to condition non-Guidelines sentences on the production of empirical evidence would, in effect, accord a presumption of unreasonableness to such sentences, in violation of the Sixth Amendment”).  Notably, in Cavera, where the reasons expressed encompassed complicated economic and criminological theory, the majority – to the chagrin of the dissenters – accepted reasons based on law review articles and essentially the judge’s own common sense and experience, and did not require that the sentencing judge hold a hearing with expert testimony.  Of course, this doesn’t authorize the district court to rely on “junk science,” but the Court notes (in reasoning that evokes the fox in the henhouse) “district courts should be the primary gate-keepers of junk science subject always to review that is deferential.” 


  • Defer, defer, defer to expertise of district judges: Like a refrain, the Cavera Court repeatedly references the new power and discretion of sentencing judges, with lots of quotable lines for sentencing memoranda and appellate briefs, including some already cited and the following: “responsibility for sentencing is placed largely in the precincts of the district courts;”  district courts have “discrete institutional strengths;” appellate court “need not, in the end, find a district court’s reasoning compelling in order to affirm” (from Judge Katzmann’s concurrence); the deference owed to sentencing courts “reflects an acknowledgment of the general insights and judgment that district courts develop – a sort of judicial common sense – simply by virtue of imposing scores of sentences each year” (from Judge Raggi’s concurrence); and “we must defer heavily to the expertise of district judges” even when that results in “substantial variation among district courts,” a “necessary cost” that “may not be easy for appellate panels to accept.”

Lawyers: Jeffrey Rabin, Esq. (defendant); AUSA Taryn A. Merkl; Leonard Koerner & Deborah Brenner (Corporation Counsel of the City of New York for Amicus Curiae the City of New York)

See Archives for all posts since September 2007.