Second Circuit finds above guideline sentence reasonable

Today in US v. Pereira, No. 05-5969 (2d Cir. Oct. 13, 2006) (available here), the Second Circuit continued the pattern of appellate courts affirming above-guideline sentences as reasonable after Booker.  Pereira is troubling for various reasons:

First, Pereira seems to apply a review standard other than just reasonableness as required by Booker.  Citing a bunch of pre-Booker precedents, it seems to demand that the defendant show the sentence was infected by “egregious and obvious” error. This seems quite misguided.

Second, Pereira indicates that a “cursory” explanation is sufficient for an above-guideline sentence, even though that explanation never addressed the parsimony provision of 3553(a), nor really explained how an above-guideline sentence comported with any of the 3553(a) factors.

Third, nothing in the Pereira facts reveals anything special about the defendant to justify an above-guideline sentence (indeed, the guideline range was greatly elevated by 16-levels based on a questionable guidelines interpretation).  Consequently, Pereira is in tension with the Second Circuit’s work in Rattoballi and Castillo, both of which reversed below-guideline sentences and stated that there needed to be something individually special about a defendant to justify a non-guideline sentence.

UPDATE:  The Second Circuit Blog here notes another ugly feature of Pereira.  And the Second Circuit Sentencing Blog here responds to Pereira by asking “is the Second Circuit serious?”