Find a Local Lawyer

Close This Box!

Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court has broad latitude to ?impose either a Guidelines sentence or a non-Guidelines sentence.?  United States v. Sanchez, 517 F.3d 651, 660 (2d Cir. 2008); see also United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).  Accordingly, the role of the Court of Appeals is limited to examining a sentence for reasonableness, which is akin to review under an ?abuse-of-discretion? standard.  See Cavera, 550 F.3d at 190; see also Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007) (holding that ?courts of appeals must review all sentences-whether inside, just outside, or significantly outside the Guidelines range-under a deferential abuse-of-discretion standard?); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (?A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.? (internal alteration, citations, and quotation marks omitted)).  This standard applies ?both to the [substantive reasonableness of the] sentence itself and to the procedures employed in arriving at the sentence.?  United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.2008) internal quotation marks omitted).

When a defendant challenges the district court's interpretation of a Guidelines provision, we review this interpretation of the Guidelines-just as we would review the interpretation of any law- de novo.  See, e.g., United States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009) (?In general, we review a district court's determination that a defendant deserves a[n] ... enhancement ... de novo.... ?).  De novo review of the interpretation of a Guidelines provision does not exceed the narrow appellate review prescribed by Gall.  128 S.Ct. at 591.  Rather, de novo review of the law is adequately captured in the deferential ?abuse-of-discretion? standard that Gall requires.  Id.  As the oft-cited case Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008), notes, ?[a] district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.? (internal alteration, citations, and quotation marks omitted) (emphasis added).  Put differently, a district court necessarily ?abuses its discretion? if it makes an error of law. In this way, review for ?abuse of discretion? and de novo review are not entirely distinct concepts, but rather, review for abuse of discretion incorporates, among other things, de novo review district court of rulings of law.  See, e.g., United States v. Legros, 529 F.3d 470, 473 (2d Cir. 2008) (?The abuse-of-discretion standard incorporates de novo review of questions of law (including interpretation of the Guidelines) and clear-error review of questions of fact.?).

Further complicating and confusing the discussion of standards of review is that ?abuse of discretion? is a misnomer in the review of a district court's rulings on matters of law.  The interpretation of Guidelines provisions-or any law-is not ?discretionary? in the ordinary sense of the word, see Webster's Third New International Dictionary 647 (1976) (defining ?discretion? as ?power of free decision or choice within certain legal bounds?), because, when there is a settled interpretation of a given law, judges do not exercise their ?discretion? on whether or how to interpret or apply the law.  Instead, they attempt in good faith to apply relevant precedential interpretations of that law. Nevertheless, the phrase ?abuse of discretion?-a phrase that has been a source of some confusion and more than occasional (and understandable) irritation to district judges-has an expansive definition in the federal courts. See Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168 n. 4 (2d Cir. 2001).  This definition sweeps sufficiently far to define district court rulings that are based on erroneous conclusions of law as ?abuses of discretion.?  See, e.g., Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Sims, 534 F.3d at 132; Zervos, 252 F.3d at 169.  Understanding that appellate courts apply the term ?abuse of discretion? to the overall review of a district court's implementation of a sentence and that the use of the term does not imply discretion on the part of the district judge in deciding a matter of law, we review the District Court's interpretation of the Guidelines here de novo.  See Belot v. Burge, 490 F.3d 201, 206-07 (2d Cir. 2007); see also Zervos, 252 F.3d at 167-69 (explaining the differences among de novo, clear-error, and abuse-of-discretion review).