The Cube and the Cathedral
A Great Day for Freedom

2d Cir. Takes Hardline on Booker

Don't expect much to change in the Second Circuit in light of the United States Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005).  Federal sentencing guidelines may no longer be mandatory, but they may as well be in Connecticut, Vermont and New York.

The Circuit first decided in United States v. Crosby, 397 F.3d 103 (2d.Cir.2005) to instruct the District Courts that although the guidelines are now merely advisory, the Courts ought to heed the advice.

In a case published earlier this week, the Circuit went out of its way to declare just how binding this advice can be.

United States District Court Judge Peter Dorsey of New Haven sentenced a woman to one day in jail after a guilty plea for embezzling about $366,000 from her bank employer. Her guidelines calculation called for incarceration for a period ranging from 24 to 30 months.

Judge Dorsey departed downward under the guidelines in May 2004. The Government took an appeal contending the record did not support the downward departure. The case was briefed before Booker, and argued after Crosby.

The Court directed that the case be remanded for new sentencing under Booker/Crosby and then signalled that insofar as it was concerned a sentence of one day was not "reasonable."

Great! Trial judges who actually lay eyes on a defendant and then impose sentence will now be second-guessed by the most amporhous of standards -- "reasonableness."  And this from an appellate court unbounded in its discretion to determine what reason requires.

Were we better off with the guidelines?

See, United States v. Godding, 2005 WL 894786 (2nd Cir., April 19, 2005).