Tuesday, March 18, 2008

White Collar Sentence Reversed - Too Short

The Second Circuit Court of Appeals in the case of Cutler v. United States, vacated the sentence and remanded for a new sentencing, stating in part:

"procedural errors, the clear factual errors, and the misinterpretations of the § 3553(a) factors discussed above--in particular of the needs to provide just punishment, to afford adequate deterrence of crimes by others, to avoid unwarranted disparities among similarly situated defendants, and to promote respect for the law--we conclude that the court's sentence on Cutler insofar as it ordered him to serve a relatively short term of imprisonment, and its sentence on Freedman insofar as it imposed no term of imprisonment, are substantively unreasonable and constituted an abuse of discretion. Accordingly, the sentences imposed on Cutler and Freedman are vacated, and the matters are remanded for further proceedings not inconsistent with this opinion."

The defendants were convicted of "bank fraud, tax evasion, and false statements, and conspiracy to commit those offenses and mail fraud, 18 U.S.C. §§ 371, 1014, 1341, 1344, and 1623, and 26 U.S.C. § 7201."  On appeal the government argued:

"[T]he government contends that the district court erred or abused its discretion (a) in depreciating the seriousness of the bank fraud offenses based on the sums of money that Cutler and Freedman personally received and finding that the total amount of loss suffered by the defrauded banks overstated these defendants' roles and culpability; (b) in fashioning its sentence on Cutler without giving sufficient consideration to his conviction on the tax counts; (c) in refusing to adjust Freedman's offense level on account of, inter alia, obstruction of justice; (d) in granting these defendants downward departures for family circumstances; and (e) in concluding that Freedman could not be incarcerated because of his age and health. The government contends that the sentences imposed, to the extent that they ordered imprisonment of no more than one year and a day for Cutler and no iimprisonment at all for Freedman, are substantively unreasonable. For the reasons that follow, we conclude that there were errors in certain of the district court's Guidelines applications and in its departure decisions; that the sentences imposed did not properly interpret certain of the sentencing factors that the court was required to consider under 18 U.S.C. § 3553(a), such as just "punishment" and deterrence of others; and that some of the court's rationales would promote disrespect for the law."

Circuit Judge Pooler authored a concurring opinion that expressed the position that the sentence needed to be remanded for reconsideration because of procedural errors, but believed that a determination of the unreasonableness of the sentence should be left for the trial court on remand.

For additional discussion, see Professor Doug Berman's Sentencing Law & Policy Blog here and the ABA LawJrl News here.

(esp) (w/ a hat tip to John Wesley Hall)


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