Important Second Circuit Cases

United States v. Dorvee

In United States v. Dorvee, the Second Circuit vacated a defendant’s child pornography sentence as substantively unreasonable. The Second Circuit’s deconstruction of § 2G2.2 is important as is its warning that this is “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.” 616 F.3d at 184. More recently, in United States v. Jenkins, --- F.3d ---, 2017 WL 1371399 (2d Cir.), the Second Circuit vacated a within-Guideline sentence as substantively unreasonable. Jenkins expands the criticism of § 2G2.2 and, among other important points, notes that the Sentencing Commission itself, in its 2012 report, “has effectively disavowed § 2G2.2.” Id. at *6.


United States v. Cavera

United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc). Cavera reflects the Supreme Court’s the Court determination that the Sentencing Guidelines are truly advisory and that it is 18 U.S.C. § 3553(a) that controls: “It is now . . . emphatically clear that the Guidelines are guidelines—that is, they are truly advisory. A district court may not presume that a Guidelines sentence is reasonable; it must instead conduct its own independent review of the sentencing factors, aided by the arguments of the prosecution and defense. District judges are, as a result, generally free to impose sentences outside the recommended range.” Id. at 189.

United States v. Booker

United State v. Booker

In this seminal decision, the Supreme Court held that the mandatory nature of the Sentencing Guidelines violated the Sixth Amendment. In later decisions, the Supreme Court has made it clear that because the Sentencing Guidelines are advisory, a court has the ability to vary from the Sentencing Guidelines based on purely policy disagreements, even in the “mine-run case.” Kimbrough v. United States, 552 U.S. 85, 110 (2007) (explaining that it is “not . . . an abuse of discretion for a district court to conclude . . . that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.”); Spears v. United States, 555 U.S. 261, 267 (2009) (“[C]ourts are entitled to vary from the . . . guidelines in a mine-run case where there are no ‘particular circumstances’ that would otherwise justify a variance from the Guidelines’ sentencing range.”).