New York Federal Criminal Practice Blog
May 12, 2010

Second Circuit Issues Notable Ruling on Deconstructing Sentencing Guidelines

Kimbrough’s green light to reject sentencing guidelines that are not the product of “empirical data and national experience,” has been a call to arms to defense lawyers and judges to subject individual guidelines, and their related commentary, to rigorous scrutiny.  In fact, the National Federal Defender Sentencing Resource Counsel has a project called “Deconstructing the Guidelines,” which publishes papers critically examining individual guidelines to determine if they fail to reflect the exercise of the Sentencing Commission’s “characteristic institutional role.”  One such paper – Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (January 1, 2009) by Troy Stabenow – is the likely impetus behind a notable decision from the Second Circuit issued yesterday: United States v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010).  

In Dorvee, the Court reached the rare conclusion that a sentence was substantively unreasonable (a 240-month sentence, to be exact), citing in part the “serious flaws” in the child pornography guideline.  Like the crack guideline at issue in Kimbrough, the child pornography guideline yields harsh and iniquitous results, not because of any empirical analysis, but solely as a result of Congressional directives.  In words that apply far beyond the guideline at issue here, the Court reminds us that Sentencing Commission is just a fallible government agency, and whether its pronouncements are entitled to respect should be determined on a case-by-case basis:

This deference [sentencing judges must pay] to the Guidelines is not absolute or even controlling; rather, like our review of many agency determinations, “[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” On a case-by-case basis, courts are to consider the “specialized experience and broader investigations and information available to the agency” as it compares to their own technical or other expertise at sentencing and, on that basis, determine the weight owed to the Commission’s Guidelines. (citations omitted)


In its conclusion, the Court would appear to limit this decision to the peculiar flaws in the child pornography guideline – “an eccentric Guideline of highly unusual provenance” – but as the Federal Defenders establish in their Deconstructing the Guidelines project, every guideline has the potential to be viewed as an “eccentric” one “of highly unusual provenance” if you just take the trouble to peel the layers of amendments away, and put its origin under a microscope.  Dorvee is also further proof, as my colleague Harlan Protass has argued at the Second Circuit Sentencing Blog, of the blurring between procedural and substantive review of sentences.

Lawyers: Paul J. Angioletti, Esq. (defendant); AUSAs Paul D. Silver, Thomas Spina, Jr., Paul Ryan Conan, and Brenda K. Sannes

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