New York Federal Criminal Practice Blog

Recently in the Sentencing - General category:


The New York State Association of Criminal Defense Lawyers recently published its winter edition of Atticus, showcasing the two impressive honorees at the upcoming annual dinner of the NYSACDL Foundation, Chief Judge Jonathan Lippman and David Ruhnke, Esq.  In it, I also have an article addressing three recent Second Circuit decisions of note: United States v. Banki (reach of a regulatory crime narrowed under the rule of lenity); United States v. Lee (government abused its authority when it withheld a third “acceptance of responsibility” point because the defendant had challenged errors in his presentence report); and United States v. Rivera (ameliorating “shameful inequalities” of crack-cocaine disparity by applying the rule of lenity to an ambiguous sentencing guideline).  It is available here.

The NYSACDL Foundation’s annual dinner is this Thursday, January 26, at the Prince George Ballroom.  If last year’s elegantly fast-paced event is anything to go by, this will be a memorable celebration of two champions of criminal defendants’ rights and indigent defendants in particular, and the New York State criminal defense community in general.  Tickets (which are fast disappearing) are available here.

Finally, a belated Happy New Year to my loyal readers from snowy Minnesota, where I have assumed a position as Practitioner in Residence at the University of Minnesota Law School for the 2011-12 academic year.

One of the Second Circuit’s last published criminal decisions of 2010 is also one of the most notable sentencing decisions of the year.  In United States v. Preacely, 2010 WL 5156384 (2d Cir. December 21, 2010) – a case that generated separate opinions from each member of the panel, including a dissent from Judge Raggi – the Court vacated on procedural grounds the sentence imposed on a cooperating career offender because of the district court’s possible misapprehension of its power to depart from the career offender guideline.  The case is an important reaffirmation of a district court’s power – and in some cases, duty – to depart from or reject entirely the “remarkably severe” career offender guideline, and its obligation to give effect to post-offense rehabilitation.


Preacely pled guilty to crack distribution under a cooperation agreement and was released on bail.  Between arrest and sentencing, he underwent “exceptional rehabilitation,” overcoming a daily marijuana habit, participating in pro-active cooperation leading to “several successful criminal investigations,” completing two work training programs, and “dramatically transform[ing] his personal life” through marriage, parenting and becoming a youth advisor for the Nassau DA’s gang prevention program.  

Preacely’s presentence report determined that he was a “Career Offender” as defined under the Sentencing Guidelines, a category that resulted in a dramatic bump both of his offense level and criminal history category.  His applicable guideline was therefore 188-235 months in custody.  Rejecting defense counsel’s request for a sentence of time-served (about two years), EDNY Judge Platt noted repeatedly that he could not ignore the fact that he was dealing with a “Category VI” offender (the category to which career offenders are automatically assigned), and imposed a sentence of 94 months, exactly half of the low end of the recommended guideline range.


In a decision written by Ninth Circuit Judge Wallace (sitting by designation), the Court held that it was unclear from Judge Platt’s repeated emphasis of Preacely’s status as a Category VI career offender that he understood he was free to reject the career offender classification entirely.  Evidence of Preacely’s rehabilitation was “particularly relevant to determining whether the Career Offender Guideline was appropriate,” but Judge Platt’s statement that he was “dealing with a Category VI career offender, regardless of all of what you said,” “reinforce[d] [the Court’s] doubt that the district judge fully understood his authority to depart from Category VI if it significantly over-represented the seriousness of Preacely’s criminal history and/or the likelihood that he will commit further crimes.”  Accordingly, the Court remanded so that Judge Platt could consider that option.  

Judge Lynch’s Concurrence

Adding his “common-sense” explanation for the decision, Judge Lynch described the career offender guideline as “a simplistic three-strikes policy,” which in Preacely’s case was “distinctly inflated” and “remarkably severe.”  Premised on the likelihood that someone in that category “presents an extreme danger of committing more crimes,” it may not be the appropriate baseline for someone, like Preacely, who “had reformed, and no longer present[s] such a danger.”  While the district court was not required to accept Preacely’s claims of reform, “[it] was required to consider those claims” and not simply to assume that he was dangerous based on his classification as a Category VI offender.  Judge Lynch adds:

[I]t is extremely useful to give separate consideration to that aspect of the cooperation departure that operates as a pure reward to induce testimony, regardless of the defendant’s character, and the quite separate basis for mitigation that relates to a defendant’s potential reformation (which might be evidenced in part by his cooperation with the authorities).  

Judge Raggi’s Dissent

In a dissenting decision, Judge Raggi took issue with the majority’s conclusion that Judge Platt may have misunderstood his power to depart from the career offender guideline, pointing out that he acknowledged on the record that he could depart as far down as a non-custodial sentence.  Even if the majority was correct that there was some ambiguity on that score, she proposed that “the proper action would be to remand for clarification, not to vacate and order resentencing.”


As the authors point out in the excellent “Deconstructing the Career Offender Guideline” (and citing the Sentencing Commission’s own research), “[s]entences recommended by the career offender guideline are among the most severe and least likely to promote sentencing purposes in the United States Sentencing Guidelines Manual.”  Preacely places that harshness in a stark light – relatively minor convictions catapulted him into the category, while his stunning post-arrest transformation established that he clearly did not belong among the incorrigible offenders for whom the category was written.  Indeed, the subtext of the majority’s opinions in Preacely is that his sentence – cruelly returning a newly-productive individual back to prison for at least another five years – was substantively unreasonable.  Preacely is therefore an important case not just on the power to depart from the career offender guideline, but the duty to depart from it where the defendant has presented compelling evidence that it should not apply to him.  More generally, the case is an important precedent on a sentencing judge’s obligation to consider a defendant’s post-offense rehabilitation efforts, and, in cases involving cooperation, to give additional credit for that aspect of cooperation that reflects the defendant’s actual or potential reformation.

Lawyers: Yuanchung Lee (Federal Defenders of New York, Inc.); AUSA Thomas Sullivan and Susan Corkery
The NYSACDL has published its fall issue of Atticus.  Judge Bellacosa has contributed an eloquent piece in support of open-file discovery, relevant both to state and federal prosecutorial practices, highlighting the success of a project in the Brooklyn DA's office, and advocating a state-wide statutory authorization, with uniform standards of application and accountability.  Mark Hosken of the WDNY Federal Defender has contributed a notable piece on the Ex Post Facto Clause in a post-Booker world, and I have contributed a piece on some recent decisions from the Second Circuit, including the Rajaratnam and Amanuel cases on wiretaps, the Martinez case on Batson, and Ortiz on sentencing. 
The shift from a mandatory sentencing guideline regime to an advisory one has increased the importance of – and the district courts’ reliance on – expert evaluations of the defendant for sentencing purposes.  This is especially true in cases where the defendant may pose a threat to the community upon release.  In United States v. DeSilva, 2010 WL 2925863 (2d Cir., July 28, 2010), the Court reversed a 132-month sentence in a child pornography distribution case because the district court had erroneously relied on a psychologist’s report addressing the defendant’s potential dangerousness in the context of a bail application.  In the process, the Court made some important observations about the use of a psychological report at sentencing, including acknowledging it may provide relevant mitigating evidence, and that a district court should explain its reasons in the event it rejects its conclusions.  


The defendant, an admitted child molester, pled guilty to distributing child pornography.  He faced a guideline range of 235-240 months.  In sentencing him to 132 months, the district court relied in part on a psychological report of the defendant that concluded he was not a danger to the community.  The report had been prepared for use at a pretrial bail hearing, and premised its dangerousness findings on the fact that any pretrial release would be into the defendant’s parents’ custody.  The government appealed.


The Second Circuit agreed with the government that the district court had committed procedural error when it relied on the report “in so far as it entirely removed [the psychologist’s] opinion from the context in which it was rendered.”  In particular, the Court noted that the report at issue “was conditioned on the premise that DeSilva would be released to his parents,’ and therefore was only of “minimal relevance” on the issue of his potential to molest children following his release from his term of imprisonment, when parental monitoring would not be on the cards.

Notably, the Court had this to say about psychological reports in general:
Although a psychologist’s report may provide mitigating evidence for the court’s consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a).  If the psychologist’s report cannot be squared with the court’s own judgment of the defendant’s culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist’s findings, so long as the court explains its basis for doing so.

In appropriate cases, psychological reports of the defendant can have a significant mitigating effect at sentencing – humanizing him in a way that the presentence report does not, elucidating his offense behavior in the context of his unique emotional and psychological deficits, and giving the sentencing judge security (and cover) in rejecting the applicable advisory guideline range.   DeSilva reaffirms all of the above, with the simple and elementary caveat that if a psychological report is to be used at sentencing, it should not be recycled from another source, but should be tailored directly to the sentencing factors under 18 U.S.C. § 3553.
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

Making a formal pact with federal prosecutors has many advantages, as demonstrated in United States v. Menendez, 2010 WL 1172076 (2d Cir. March 29, 2010).  The appellant (Sierra) had pled guilty without a plea agreement to an indictment charging him with heroin distribution and money laundering.  He challenged his sentence of 135 months in part on the grounds that the district court created an unwarranted disparity in sentencing by imposing upon him a longer term of imprisonment than on each of his several co-defendants, who, he argued, played the same or a larger role in the criminal scheme. (This argument was not raised at the district court level, and so was reviewed on a plain error analysis.)  Rejecting the claim, the Court explained:

Although it is true that a district court may compare co-defendants' sentences to avoid unwarranted sentencing disparities, the sentencing disparities between Sierra and his co-defendants were not unwarranted in this case. Unlike Sierra, his co-defendants either (1) pleaded guilty pursuant to a plea agreement, (2) pleaded guilty to conspiracy to distribute heroin or narcotics but not to conspiracy to launder money, (3) pleaded guilty to conspiracy to launder money but not to conspiracy to distribute, or (4) were exceptionally honest in admitting to the crimes, and brought to the court's attention unique facts, such as HIV-positive status and a resulting reduced risk of recidivism. On plain error review, we therefore reject Sierra's unwarranted-disparity argument as without merit.

In the same case, the Court ruled as a matter of first impression that the base offense level for Sierra's conviction for conspiracy to launder narcotics proceeds could be calculated using the greater amount of drugs involved in the underlying offense of conspiracy to distribute heroin.

Lawyers: Randa Maher, Esq. (defendant); AUSAs Sarah Lai and Guy Petrillo.

At sentencing, a defendant's most personal and intimate experiences may be discussed and analyzed.  The public has a presumptive right of access to these proceedings, and where, as in United States v. Doe, 2009 WL 4823001 (2d Cir. December 14, 2009), the defendant "seeks to seal the record of the criminal proceedings totally and permanently, the burden [to overcome that presumption] is heavy indeed."

In fact in Doe, both the defendant and the government sought the permanent sealing order based on the existence of an undisclosed "compelling interest subject to a substantial risk of prejudice."  The Court accordingly appointed amicus curiae to defend the district court's order denying the application.

Although it held that total and permanent sealing was unjustified, the Court noted that "it may be possible to protect the 'compelling interest' at issue here by sealing the sentencing transcipt in a way that is less than total and permanent.  It therefore remanded the case "to afford the parties an opportunity to apply for a sealing of the sentencing transcript that is partial, non-permanent, or both."

Lawyers:  Lee Dunst, Anne Chamption, Daniel Chirlin, Brian Mogck, Aaron Simowitz, Gibson Dunn & Crutcher LLP (amicus curiae); AUSAs Elizabeth Kramer, Peter Norling, Jo Ann Navickas

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