From Doug Berman, the Second Circuit’s en banc decision in U.S. v. Cavera arrived the other day, reversing the original panel’s ruling that EDNY Judge Charles Sifton’s use of “local conditions” to increase a sentence above the guidelines is permissible.  Ironically, the explanation for this reversal is none other than the intervening Supreme Court decisions in Gall and Kimbrough.

Cavera was in his 70s when he decided to embark on a career as a gun dealer, You know how those wild septuagenarians in Florida will do anything to keep busy and make a buck.  So Cavera found selling guns to be brought up to New York a good way to keep his idle hands busy, and it made good use of the training from his army career.

After a plea of guilty. Cavera faced a guidelines range of 12 to 18 months, but advised that he was considering an above-guidelines sentence because of “local conditions.”  What this meant was that bringing guns into New York City was an offense of a different calibre than, say, Sherman Oaks, California.  Judge Sifton concluded that the guidelines failed to adequately address the need for deterrence of gun trafficking in large metropolitan areas.  With higher homicide rates and the plethora of problems cause by weapons possession in cities, the guidelines could not properly homogenize the nation as it was intended to do when it came to guns.

On the initial appeal, the Circuit reversed, with the government agreeing that the sentence could not stand, holding that it was improper for Judge Sifton to impose a broad-based policy decision on the sentence of this individual.  The District Court could only take into account particularized arguments relative to the defendant before it, and went beyond his authority to determine, as a matter of policy, that the guidelines failed to provide adequate deterrence for major metropolitan areas.

But that was then.  This is now.

As a product of Booker, Gall and Kimbrough, the Circuit held that their review was limited to an abuse of discretion, and that the “very wide latitude” afforded a sentencing judge  allows him to take into account the “nature of the offense” as well as that of the defendant.  The double-edge sword of Gall and Kimbrough is here.

As Judge Sifton properly considered the guidelines as well as the factors set forth in 3553(a), he satisfied his procedural duty and left the Circuit to consider only substantive review, subject to the “unreasonableness” standard of highly deferential review.  The Circuit held that it was not to substitute its judgment for that of the sentencing judge.  The Court expressly rejected the presumption of reasonableness of a within guidelines sentence, as well as the presumption of unreasonableness of an outside guidelines sentence.

But all this doesn’t mean that sentences only depart in one direction, a point that many forget when they held parties after the Gall and Kimbrough decisions.

In this case, the Circuit held that the sentencing court was authorized to impose a sentence higher than the guidelines would require based upon a broad policy position, provided that the sentencing judge applies the considerations of 3553(a).  In this case, Judge Sifton used the general deterrence prong, certainly a legitimate and proper consideration for sentence, to justify his imposition of a higher than guidelines sentence on Cavera.

On the down side, the expectation that judges would use Gall and Kimbrough as a means of reducing the ridiculously harsh sentences mandated by the guidelines has been proven wrong.  While available for that purpose, it’s similarly available to increase a sentence, despite the fact that many believe that the guidelines are far too harsh to begin with.

On the up side, this decision clarifies many of the issues of review and latitude given district court judges, including the use of policy arguments with regard to crimes, most notably the crack guidelines.  As for Cavera, the enhanced sentence added a mere 6 months to the top end of the guidelines, which for most people wouldn’t be all that painful, though for a man in his 70s is like adding 10 years to the back end.

If you do federal defense in the 2nd Circuit, this is a must read decision, and offers much for argument regardless of which way you want the sentence to go.