Cautionary Tale from the Second Circuit on Necessity of Explaining Reasons for Guideline Deviation

Faced with presentence report recommendations of 240 years and 40 years, respectively, for two defendants, a district court instead departed downwards to 30 years and 20 years, without notice or explanation. The Second Circuit vacated and remanded for resentencing, in accordance with 18 U.S.C. § 3553(c)(2) and the departure provisions of the Sentencing Guidelines. On remand, the district court imposed the same sentence, again without notice or explanation, promising an explanatory letter that never materialized. Counsel for one defendant, fearing another reversal, provided the judge at the sentencing with a written notice and explanation, which the judge promptly read into the record. Unfortunately, the statement amounted to nothing more than a conclusory and formulaic recitation of statutory sentencing factors, and no facts specific to the individual case. Yesterday, in a blistering decision (United States v. Hirliman, 2007 WL 2791365 (2d Cir. 2007)), the Second Circuit reversed again, and even took the unusual step of instructing that the case be assigned to a different judge. The Court pointed out that the Supreme Court’s decision in Booker (which rendered the Sentencing Guidelines advisory rather than mandatory) did not alter the sentencing judge’s obligations under U.S.C. § 3553(c) to “state in open court the reasons for its imposition of the particular sentence” and state in writing “with specificity” the reasons for imposing a sentence outside the calculated Guidelines range. Moral of the story: try to provide your explanation-challenged sentencing judge with reasons for a below guidelines sentence that will pass muster on appellate review.