Federal Judiciary

United States v. Dorvee, Docket No. 09-0648-cr (2d Cir. May 11, 2010) (found here)

In what amounts to a rare circumstance, the Second Circuit found that a 240 month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography was substantively unreasonable.  (The Second Circuit also found the sentence procedurally unreasonable because of an error in the calculation of the defendant's advisory Guidelines offense level.)

More specifically, the Second Circuit found the sentence substantively unreasonable for the following reasons.  First, the court was "troubled  by the district court's apparent assumption that Dorvee was likely to actually sexually assault a child, a view unsupported by the record evidence yet one that plainly motivated the court's perceived 'need to protect the public from further crimes of the defendant.'"  This assumption caused the district court to place undue weight on this sentencing factor.  Second, the district court's "cursory explanation of its deterrence rationale ignored the parsimony clause."  Specifically, the "district court provided no reason why the maximum sentence of incarceration was required to deter Dorvee and offenders with similar history and characteristics."  Moreover, the district court "offered no clear reason why the maximum available sentence, as opposed to some lower sentence, was required to deter an offender like Dorvee."  Finally, the Second Circuit was also "troubled that the district court seems to have considered it a foregone conclusion that the statutory maximum sentence 'probably [would] be upheld' on appeal, apparently because it concluded that its sentence was 'relatively far below' the initial Guidelines calculation of 262 to 327 months."

The facts of Dorvee may make its substantive unreasonableness determination limited.  Indeed, the Second Circuit recognized that the district court's errors "were compounded by the fact that the district court was working with a Guideline that is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what 3553 requires."  Still, it is worth reading (and relying upon) because it provides a road-map and insight to those who are arguing substantive unreasonableness on appeal, particularly as regards the Second Circuit's references to the parsimony clause.  It's well worth checking out in full.