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: New York Federal Criminal Practice

Second Circuit Slaps Down Effort to Dispose of Sentence Appeal Via Summary Affirmance Motion

The Second Circuit has held that ?overreaching attempts to dismiss appeals as frivolous . . . will not be accorded a friendly reception,? and in United States v. Davis, 08-3240-cr (2d Cir. March 15, 2010), it was not especially friendly to the government?s effort to short-circuit a sentencing appeal through a summary affirmance motion.  

The defendant had challenged his sentence on procedural and substantive grounds.  First, he argued that the district court had found ?no reason? to give a below-Guidelines sentence, indicating an improper presumption in favor of Guideline sentences.  Rejecting the government's motion for summary affirmance, the Second Circuit found that this position ?is not inarguable nor totally devoid of support.?  

Second, this 57 year-old defendant argued that his sentence was substantively unreasonable, where he was sentenced to 97 months for possession of child pornography, despite the absence of any evidence that he had ever acted inappropriately with a child, or distributed or traded the material.  Similarly finding this argument non-frivolous, the Court pointed out that while it may apply a deferential abuse-of-discretion standard in evaluating the reasonableness of sentences, it still had a ?duty to examine the substance of the sentence and to ?patrol the boundaries of the reasonableness.??  The Court added: ?Strong deference to a district court?s decision is not an invitation to rush to characterize an appeal from it as frivolous.?  The motion for summary affirmance was denied and the regular appeal process will proceed.

Lawyers: James Greenwald and James Egan, Federal Public Defender (Defendant); AUSA Paul Silver

Full post as published by New York Federal Criminal Practice on March 17, 2010 (boomark / email).