What You Need For a Booker Remand in the First Circuit

The First Circuit issued an opinion today in United States v. Cacho-Bonilla (here) in which it grappled with determining whether the district judge felt sufficiently constrained by the then-mandatory nature of the Guidelines to require a remand for resentencing under the (newly-threatened) discretionary system after Booker.  The defendants were convicted of mail fraud, conspiracy, money laundering, and Sec. 666 violations, and in determinig not to remand for resentencing the First Circuit has to read some sentencing tea leaves:

In any event, the district judge did not disregard their public service; he made a judgment and took it into account by sentencing at the bottom of the guidelines range. Unlike cases in which the judge expresses a desire to give a lower sentence but thinks himself constrained, the district judge in this case gave no indication that he would have gone further if he could, or that the defendants' net public contribution was insufficiently credited by the sentences given.

As for the claim that the judge perceived himself to be restricted by the guidelines but failed to say so, there might well be cases in which the judge failed to express a desire to sentence outside the guidelines range because it was useless to say anything. But of those factors that could justify greater leniency that the defendants point to on appeal, the judge considered and rejected one; and seemed to take the other into account to his satisfaction.

Finally, having given the defendants what he deemed the benefit of the doubt on the intricate amount-of-loss calculation and by imposing a sentence at the bottom of the range, the district judge went out of his way to indicate that he thought Cacho and Perez received just sentences. After saying "I have provided every break that I could," for instance, he concluded "I, therefore, feel that it is enough." And after noting that the defendants "undertook actions which were clearly illegal with the purpose of obtaining financial gain," he concluded that the "behavior merits a sentence reflective of the seriousness of the offense conduct and to provide just punishment."

It seems that the appellate courts (and counsel) are forced to look at throw-way lines and off-hand statements to figure out whether the sentencing judge felt really constrained by the mandatory nature of the Guidelines or only mildly constrained. (ph)