Thursday, May 10, 2007

What Is a Reasonable Sentencing Departure

Professor Doug Berman of the esteemed Sentencing Law & Policy blog discusses a recent decision of the Second Circuit in U.S. v. Canova (available below) about how to evaluate the reasonableness of a sentencing court's decision to grant a downward departure from the Sentencing Guidelines.  The prosecution involved Medicare fraud, and among the grounds for granting the lower sentence was the defendant's record of community service and the fact that he paid restitution   In two sentencings, the defendant received probation each time. The question the appellate court grapples with, but ultimately avoids, is the standard to be used for assessing the size of the departure -- should the analysis be in an absolute or relative sense.  The Second Circuit described the two approaches this way:

We have not set forth any particular method for assessing the extent of a departure in order to determine its reasonableness.  Several methods can plausibly be advanced, grouped within either of two categories--an absolute assessment or a relative assessment. An absolute assessment would gauge the extent of the departure, measured in levels, without regard to the starting point from which the departure was made. Such an assessment could consider only the number of levels the departure spans--in the pending case, 15. A relative assessment would gauge the extent of the departure either by the increase or decrease in the resulting prison time (from the prison time for the adjusted offense level) or by the percentage of increase or decrease of either prison time or levels. Using a relative assessment based on prison time would require noting either the tops of the original and new ranges or the bottoms of such ranges . . .

The court leaned toward the relative assessment, finding that it was likely to be more informative than looking at the departure in absolute terms.  Having set forth this analysis, the Second Circuit then sent the case back to the district court to consider the impact of the defendant's intended loss on the reasonableness of the departure.  The appellate court was troubled by the fact that the original sentence of probation was reimposed in a second proceeding even though the intended loss from the offenses was found to be $5 million and the district court's initial assessment was a zero loss, which caused the first remand.  The Second Circuit stated:

Transcending the numbers in this case, however, is the blunt fact that the effect of the departure and the resulting sentence was to treat Canova as though he had intended to cause no loss at all.  Canova’s sentence was probation when the District Judge understood that no actual or intended loss had occurred, and it remained probation even after this Court’s remand made clear that Canova had caused some actual loss and had intended a loss of $5 million.  Although unusual circumstances might arise in which it would be reasonable to impose the same sentence after a significant aggravating (or mitigating) factor had been taken into consideration, such an outcome would require a persuasive justification. Since the District Judge sentenced here without any consideration of the $5 million loss that Canova intended, a departure that results in the reimposition of the same sentence appears to be unreasonable.


Download us_v_canova_opinion_may_8_2007.pdf

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