Federal Judiciary

United States v. Gonzalez, No. 09-1285-cr (2d Cir. April 6, 2010) (found here)

Is there a relationship between procedural reasonableness and substantive reasonableness?  And, if so, what are the contours of that relationship?  Gonzalez confirmed for me what I believed the relationship to be -- a belief founded on a reading of United States v. Cavera, 550 F.3d 180 (2d Cir. 2008).

In Cavera, the Second Circuit found that it will set aside a district court's substantive determination only in exception cases where the trial court's decision cannot be located within the range of permissible decisions.  But it also explained that this his "degree of deference is only warranted" when the Second Circuit is "satisfied that the district court complied with the Sentencing Reform Act's procedural requirements."

Thus, I have posited that if a district court commits procedural error at sentencing, arguments concerning substantive unreasonableness are better positioned to succeed and have a stronger posture because they are not entitled to the level of deference typically accorded district court sentencing decisions wherein there is no procedural error.  Put differently, review for substantive reasonableness is highly deferential.  But that level of deference is diminished if the sentencing court committed procedural error.

In a single line in Gonzalez, my theory has (I think) been confirmed: "If we determine that the sentence is procedurally reasonable, we then turn to its substantive unreasonableness."  I believe that the Second Circuit is essentially saying that it never reaches substantive reasonableness review if it first finds a sentence procedurally unreasonable.  And that makes sense.  But there still is no reason not to make both procedural and substantive reasonableness arguments.  Even if a reviewing court finds a sentence procedurally reasonable, it still might find it substantively unreasonableness based on the bleed-over effects of the procedural reasonableness arguments (even if they haven't prevailed).