High Sierra

United States v. Sierra, No,. 08-2761-cr (2d Cir. March 29, 2010) (Jacobs, Miner, Livingston, CJJ)

Gustavo Sierra pled guilty to one count of drug trafficking and one count of money laundering. The drug count involved 21 kilograms of heroin, while the money laundering count involved the proceeds of the sale of between 2 and 3.5 kilograms. Sierra’s presentence report calculated the base offense level for the money laundering count by using the total amount of the drugs involved in the drug trafficking count. With adjustments, this produced a sentencing range of 135-168 months.

Sierra objected, arguing that the guideline range for the money laundering count should be based only on the drug quantity alleged in that count, which would produce a lower offense level. The district court disagreed, used the higher range, and sentenced him to 135 months’ imprisonment.

On appeal, the circuit affirmed. It characterized Sierra as a “direct money launderer,” which means that he both laundered the money and committed the offense that produced it. And the guideline for direct money launderers, § 2S1.1(a)(1), clearly specifies that the base offense level should be the offense level “for the underlying offense from which the laundered funds were derived” if the defendant either committed the underlying offense or would be accountable for it under the usual relevant conduct principles. Here, the “underlying offense” was indisputably the 21-kilogram heroin conspiracy. Thus, under this instruction, the offense level for that conspiracy became the base offense level for the money laundering count.

The court also rejected Sierra’s novel argument that the guideline’s reference to relevant conduct principles should mitigate his sentence, rather than increase it, because he in fact laundered only the proceeds of 2 to 3.5 kilograms and not the full 21. Under the relevant conduct guideline, a defendant is accountable for “all quantities of contraband with which he was directly involved”; thus, that a defendant “laundered a lesser amount of funds than the value of his entire drug operation” is “immaterial.” Sierra’s argument would also have the effect of “underminin[g] the express purpose of” the money laundering guideline, which is to punish direct money launderers “one to four levels greater than the Chapter Two offense level for the underlying offense.” Finally, the argument is precluded by the language of the guideline itself which, for direct money launderers, does not refer to the value of the laundered funds in any way. Accordingly, Sierra’s guidelines were correctly calculated.

Sierra also argued, for the first time on appeal, that his sentence created an unwarranted disparity with his co-defendants. But the court disagreed, calling the disparities warranted. His co-defendants either had plea agreements, pled guilty only to one of the counts, were “exceptionally honest in admitting to the crimes," or had unique personal circumstances, such as serious illness, that reduced their risk of recidivism.

State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, sentenced him to 36 months’ imprisonment. She characterized the disparity between the guideline range and the likely state sentence was “unwarranted.” Later, Judge Brieant sentenced Shuler. Although the judge had intended to impose a 70-month sentence, he instead gave him 40 months, to avoid a disparity with Williams.

The government appealed, and won. Focusing largely Williams, the circuit found the 36-month sentence to be procedurally unreasonable. First, the district judge erred by not treating the guidelines as a “starting point,” and by instead deciding to rely her “personal policy” of conforming to what she viewed as the likely state court sentence. The judge focused on the wrong disparity - § 3553(a)(6) is intended to eliminate disparity on a “national,” not a local, level.

The appellate court was also concerned with basing a federal sentence on the pleading policies of a particular district attorney, since New York has sixty-two of them. Such a practice could easily increase, rather than decrease, sentencing disparities within the federal districts in New York State. Finally, the circuit was concerned about the district court’s reliance on hearsay representations as to what would have happened in state court.

The court also vacated Shuler’s sentence, “if only because” it vacated Williams’. The court identified some other problems, however. While it agreed with Judge Brieant that avoiding disparities among “persons who are engaged in the same misconduct together” is permissible, the court was concerned that he relied too heavily on Williams’ sentence “without making his own assessment of an appropriate sentence.”

The court’s parting shot was to question the “assignment practice” that created Judge Briant’s “predicament.” “[I]t seems difficult on any score to justify the assignment of the Williams and Shuler cases to different judges.” The court suggested that, on remand, one judge take both cases.

On a brighter note, the court speculated that the “real reason” that Judge McMahon imposed such a low sentence was her “understandable desire to ameliorate” the federal crack-v-powder sentencing disparity. It reminded her that she has the discretion to do so on remand.

Location, Location, Location

United States v. Cavera, No. 05-4591-cr (2d Cir. October 11, 2007) (Cardamone, Calabresi, Pooler, CJJ)

Gerard Cavera received an above-Guidelines sentence based on the district court’s view that gun offenses were more serious in densely populated areas like New York city. This opinion is the court’s second attempt to deal with a location-specific reason for imposing a non-Guideline sentence. Confusingly, both attempts have been in this same case.

The first opinion here, back in June, held unequivocally that a district court’s “reliance on community-specific characteristics, such as population density, to impose a non-Guidelines sentence constituted legal error and rendered [the] sentence unreasonable.” This opinion held that it was always inappropriate to use “community-specific” considerations as the basis for deviating from the Guidelines, because such sentences would lead to unwarranted regional disparities in sentencing. Judge Calabresi concurred in the result, but disagreed with the majority’s analysis, rejecting the “broad language . . . that denies the possibility of any consideration of geographic factors” in sentencing. He went on to decry the “false dichotomy” between sentencing factors that relate to individual culpability and those that do not, calling it a “legal fiction.” He suggested that it would be “permissible” for a court to conclude that “taking into consideration all the circumstances of the particular crime, including geography, the sentence should be enhanced.”

And now we have a new opinion to replace the one from June. It should first be noted, however, that the court has not done a particularly good job of explaining itself. A footnote reveals that the June opinion “prompted comments from several members of the Court,” without saying what the comments were. Well, whatever they were, they were sufficient to prompt the panel to withdraw both the June opinion and Judge Calabresi’s concurrence and try again.

The new opinion seems to have embraced, to a much greater degree, Judge Calbresi’s view. It definitely leaves open the possibility that, in some circumstances, findings about the characteristics of the location of the offense could legitimately affect the sentence, at least if those findings are tied to something specific about the case. The new opinion is more nuanced than that of the June opinion. It holds that under the “circumstances of this case” the reliance on location specific factors was error because the district court made “no reference to any characteristic particular to the defendant or his crime” and relied instead “entirely on circumstances common to all defendants charged with gun trafficking in New York and similar large cities.” Just to make the point clear, the court says the same thing again, about four pages later, too. It even drops a couple of footnotes on this issue: one that expressly holds, contrary to the June opinion, that it is not true that a court may “never consider characteristics of the locality” in deciding the seriousness of a crime, and another that gives an example of one type of argument that might support a location-based variance.

So where does this leave us? Well, pretty much where we already were. The court of appeals clearly prefers sentences that are based on particular findings that relate to the individual defendant and his offense, and it continues to be skeptical of categorical sentencing decisions. One interesting side-bar to this case relates to the still unresolved issue of state-federal sentencing disparities, which are clearly “location based.” So far, the court has held that a district judge is not required to consider them, but has not yet decided whether a district court is permitted to do so. When the court finally gets to that question, this case will clearly weigh heavily in its decision.

Steal This Footnote

United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)

This is pretty much a case about nothing. The only real nugget is in footnote 4.

Johnson appealed his 120-month gun sentence - the statutory maximum - on several grounds. As is often true, his case had begun in state court, but was later transferred to federal court. Johnson pointed out that had the state prosecution gone forward, he could not have received more than seven years’ imprisonment. On appeal he argued that the district court was required to sentence him so as to take into account (1) the disparity between his sentence and his co-defendant’s, a claim that the court has already rejected, and (2) the disparity between his federal sentence and the sentence he would have received in the state court.

The court rejected this second claim as well, holding that a district court is not “required” to consider potential federal/state sentencing disparities. However, footnote 4 expressly leaves open the more important question, which is whether such consideration is permitted.