A significant (unpublished?!?!?) Second Circuit Rita ruling

The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here).  The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita.  Here are some snippets from a strong opinion that, in my view, should be published:

Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines….  The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.

Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines.  The district court did not articulate why a Guidelines sentence was appropriate….

Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.

Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence.  Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.

This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion.  Rita, 127 S. Ct. at 2468-69.  The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.