The 2d Circuit speaks on Booker!

When it rains it pours: the Second Circuit has jumped into the Booker fray today with decisions in US v. Crosby, 03-1675 (2d Cir. Feb. 2, 2005) (available here), and US v. Fleming, 04-1817 (2d Cir. Feb. 2, 2005) (available here).  It seems Crosby is the really big decision (though Fleming involved an affirmance), and together they provide 53 more pages of circuit court wisdom on Booker. 

Seeing that both were written by my former boss Judge Jon O. Newman, and that they aspire to cover a lot of ground post Booker ground, I think it is time to declare today the biggest post-Booker day to date.  To whet your appetite as you check the toner on your printers, here’s the set up of Crosby:

[W]e believe that in the aftermath of a momentous decision like Booker/Fanfan, which will affect a large number of cases confronting the district judges of this Circuit almost daily, it is appropriate for us to explain the larger framework within which we decide this appeal.

And here is Crosby‘s very useful summary of the state of federal sentencing (at least in the Second Circuit) after Booker:

[W]e can identify several essential aspects of Booker/Fanfan that concern the selection of sentences.  First, the Guidelines are no longer mandatory.  Second, the sentencing judge must consider the Guidelines and all of the other factors listed in section 3553(a).  Third, consideration of the Guidelines will normally require determination of the applicable Guidelines range, or at least identification of the arguably applicable ranges, and consideration of applicable policy statements. Fourth, the sentencing judge should decide, after considering the Guidelines and all the other factors set forth in section 3553(a), whether (I) to impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-Guidelines sentence.  Fifth, the sentencing judge is entitled to find all the facts appropriate for determining either a Guidelines sentence or a non-Guidelines sentence.

These principles change the Guidelines from being mandatory to being advisory, but it is important to bear in mind that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the applicable statutory maximum and minimum.  On the contrary, the Supreme Court expects sentencing judges faithfully to discharge their statutory obligation to “consider” the Guidelines and all of the other factors listed in section 3553(a). We have every confidence that the judges of this Circuit will do so, and that the resulting sentences will continue to substantially reduce unwarranted disparities while now achieving somewhat more individualized justice. In short, there need be no “fear of judging.”