New York Federal Criminal Practice Blog
November 6, 2009

Second Circuit Explains its Understanding of a "Substantively Unreasonable Sentence"

A review of 2008 sentencing statistics reveals some fascinating facts: courts in the Eastern and Southern districts of New York impose non-government-sponsored below-Guidelines sentences in about a third of the cases (30% in the Eastern; 33% in the Southern) – well more than twice the equivalent departure rate nationally (13%) – but they incarcerate at a rate equal to their national counterparts.  In fact, 87% of all federal offenders sentenced last year in New York’s busiest two districts were sent to prison.  

In other words, as I noted on this blog two years ago, New York judges are flexing their post-Booker departure muscle to tinker with the machinery of incarceration-nation, but they are not dismantling it.  Not surprisingly then, as Jay Hurst found out for us under FOIA, most of the federal prisons where New York’s sentenced offenders are serving their time, are seriously overcrowded.   (e.g. Otisville FCI – Gen Pop is 57% overcapacity; Fort Dix FCI is 24% overcapacity; Lewisburg USP is 50% overcapacity; Schuykill FCI is 50% overcapacity).

But like the old joke about God sending several worldly rescue missions to the drowning man who later claimed God had abandoned him, appellate courts keep sending reminders to district judges that they do not need action from Congress or the Sentencing Commission before they can impose non-custodial sentences in most cases.   

United States v. Rigas

The latest lifebelt is United States v. Rigas, 2009 WL 3166066 (2d Cir. October 5, 2009), in which the Court rejected defense arguments that the 17 and 12-year sentences imposed on Aldephia’s former executives for fraud were substantively unreasonable.  (His lawyers pointed out that these sentences were only marginally shorter than some convicted terrorists.)  Acknowledging that its previous definitions of “substantive unreasonableness” have given credence to an echo chamber, the Court held in Rigas that the concept is the same idea as that captured in the “manifestly unjust” standard or the “shock-the-conscience” standard – standards that “provide a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”  In other words, appellate review of the reasonableness of a sentence “necessarily places great trust in sentencing courts” and will “provide relief only in the proverbial ‘rare case.’”  Or, I know it when I see it.


In case after case, the Supreme Court and the Second Circuit could not be clearer in their insistence on the centrality of the district judge’s sentencing discretion.  Rigas is yet another shot of courage to judges who are dismayed by the appalling federal incarceration rate in this country.  It also underlines the importance of defense counsel ensuring a procedurally sound hook for the judge’s hat at sentencing.  And a reminder not to hold out too much hope if your appeal is based on the substantive unreasonableness of the sentence.  

Lawyers: Stephen McAllister (Thompson Ramsdell & Qualseth); Lawrence, KS, Neal Katyal (Morgan Legal Consulting) Lawrence G. McMichael, (Dilworth Paxson, LLP) (defendants); AUSAs William Johnson, Katherine Polk Failla; Douglas Berman, Stephanos Bibas, Marc Miller, Michael O’Hear, Mark Osler, Sandra Guerra Thompson (Amicus Curiae)

See Archives for all posts since September 2007.