Category: Reasonableness Review
On May 2, 2018, the Second Circuit held in United States v. Jamaal Brooks (Parker, Lynch, Chin) (per curium) that the district court erred in imposing a sentence of lifetime supervised release on a defendant who had violated prior terms of supervised release due to continued drug use and failure to report to scheduled drug testing. The Court stressed that while the sentencing court has substantial discretion in fashioning an appropriate sentence, a term of supervised release is nonetheless substantially unreasonable if it is improperly justified by retribution and deviates significantly from the sentence given to similarly-situated violators. Supervised release imposes real burdens on both defendants and the justice system, and this decision is a reminder that, as in other aspects of federal sentencing, the punishment should fit the crime.
Circuit Amends Decision Affirming Sentence Two Panel Members Deemed “Absurd,” Remands for Resentencing
On October 5, 2017 the Circuit published an amended opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), which supplanted a decision issued on September 11 that we covered in an earlier blog post. The amended decision differs from its forbearer in one key respect. In the initial decision, Judge Calabresi authored a concurring opinion (joined in by Judge Hall) that chided the district court’s sentence, as affirmed by the Circuit, as “little short of absurd” given the defendant’s borderline IQ, old crimes, and the “timing quirks” that rendered the sentence “very, very high . . . in contrast with almost every similarly situated defendant.” Now, in this amended opinion, the panel affirmed but still remanded “for further consideration as may be just in light of the circumstances.”
Second Circuit Affirms Sentence Based on Correct Application of Career Offender Guideline, Yet Majority of Panel Agrees the Result is “Unjust” and “Close to Absurd”
On Monday, September 11, the Second Circuit issued a published opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), a case with a complicated procedural history in which the Court affirmed a defendant’s sentence as a career offender under the now-removed residual clause of the Career Offender Sentencing Guideline. The decision was accompanied by a concurrence authored by Judge Calabresi and joined by Judge Hall, which upheld the sentence while calling the result “unjust” and “close to absurd.” We have reported on this case before, when the Circuit reversed and remanded the sentence; subsequent to our earlier blog post the case was re-opened for additional argument, and this week’s decision now affirms.
Court Remands Guidelines Sentence for Child Pornography Offenses Without Finding Procedural or Substantive Unreasonableness
In a summary order issued on July 11, 2017, United States v. Burghardt, No. 16-949(L) (Katzmann, Pooler, Lynch), the Second Circuit remanded a 322-month Guidelines sentence for distribution and receipt of child pornography for “further consideration” by the district court. The Court found the sentence to be procedurally reasonable and also found it was not substantively unreasonable, but nonetheless remanded the case for further consideration, continuing the recent trend of reversals in the sentencing of child pornography cases.
On June 19, 2017, the Second Circuit (Katzmann, Kearse, Livingston) issued a per curiam decision in United States v. Burden, et al., vacating the term of supervised release imposed on the defendants and remanding the case for resentencing as to supervised release. Judge Kearse concurred in a separate opinion.
A Long Journey Through “Silk Road” Appeal: Second Circuit Affirms Conviction and Life Sentence of Silk Road Mastermind
On May 31, 2017, the Second Circuit issued its long-awaited decision in the “Silk Road” case, United States v. Ulbricht, (15-1815-cr) (2nd Cir. May 31, 2017) (Newman, Lynch, Droney). The panel affirmed Ulbricht’s conviction and sentence of life imprisonment, identifying no reversible error. From 2011-2013 Silk Road, which functioned as an “eBay” for drug dealing, generated approximately $183 million in sales of illegal drugs. Defendant Ross William Ulbricht, who used the pseudonym “Dread Pirate Roberts,” was the owner and creator of Silk Road, and he took a commission on drugs sold through the website.
Second Circuit Partially Affirms Evidentiary Ruling on Interlocutory Appeal in Decision Illustrating the Importance of Proofreading
In United States v. Brown, 16-3468-cr (Leval, Hall, Chin) the Second Circuit affirmed in part and vacated in part via summary order a ruling excluding evidence related to a firearm that had not been identified in the indictment. The ruling is the result of a typographical error in the original indictment that went uncorrected in four superseding indictments issued over the course of nearly five years.
For the third time in the past year, the Second Circuit in United States v. Jenkins, No. 14-4295 (Kearse, Jacobs, Parker), has vacated as substantively unreasonable a sentence imposed under the sentencing guideline for child pornography offenses, U.S.S.G. § 2G2.2.
Divided Court Withdraws Opinion Vacating 60-Year Child Pornography Sentence and Affirms the Sentence as Procedurally and Substantively Reasonable
In United States v. Brown, No. 13-1706, the Second Circuit (Pooler, Sack, and Droney), withdrew the Court’s June 14, 2016 opinion, vacating Nathan Brown’s sixty year prison sentence on three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a); and two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On December 6, 2016, the divided panel issued a new opinion affirming the district court’s sentence.
In A Summary Order, Second Circuit Vacates 30-year Child Pornography Sentence on Substantive Reasonableness Grounds
In United States v. Sawyer, No. 15-2276, the Second Circuit (Jacobs, Pooler, Crawford) vacated and remanded for resentencing a case involving a conviction for possession of child pornography. The decision rested on a finding that the 30-year sentence was substantively unreasonable, yet was made by unpublished summary order. This is the third time in the past several months that a child pornography sentence has been vacated and remanded (see our posts on United States v. Bennett and United States v. Brown), but while the prior two decisions rested on procedural grounds as a means of sending the case back to the district court for a second look, Sawyer relies solely on substantive unreasonableness. It is very rare for the Second Circuit to reverse a within-the-range sentence for substantive unreasonableness.
In United States v. Heath Powers, 15-3867, the Second Circuit (Cabranes, Pooler, Parker) issued a per curiam decision remanding to the U.S. District Court for the Northern District of New York (D’Agostino, J.) with instructions to vacate an erroneous count of conviction on a child pornography charge and for de novo resentencing. The defendant had been charged by a federal grand jury of eleven counts of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography. The Court’s description of the underlying facts indicated that the defendant also engaged in sexual acts with the seven-year old girl he had photographed. After the defendant pleaded guilty to all counts, the district court sentenced him to a below-Guidelines 480-month term of imprisonment, which included terms of imprisonment on each count, all to be served concurrently.
Second Circuit Demonstrates the Difficulties in Withdrawing a Guilty Plea and Challenging a Below-Guidelines Sentence
In United States v. Rivernider, 13-4865, the Court (Livingston, J., Lynch, J. and Rakoff, D.J., sitting by designation) affirmed the judgment entered by the United States District Court for the District of Connecticut (Chatigny, J.) against two defendants, Robert Rivernider and Robert Ponte. The defendants pled guilty and were sentenced for multiple counts of wire fraud, conspiracy to commit wire fraud, and tax evasion stemming from a Ponzi scheme and real estate scheme the two ran together.