Local conditions Cavera case going en banc in Second Circuit

A helpful reader alerted me to the fact that, late last year, the Second Circuit decided (apparently sua sponte) to consider en banc the case of US v. Cavera (05-4591).  As some may recall (and as detailed in posts here and here), Cavera is the fascinating case in which Judge Sifton decided to enhance a sentence above the guideline range in a gun case because he viewed gun possession in urban spots like NYC to be especially bad.  Such “local conditions” considerations would seem to undermine national sentencing consistency, but they also seem like a good idea.  It will be fun to see what the always thoughtful Second Circuit does with this case en banc.

Here is the basic notice from Pacer about the circuit court’s collective interest in this case:

12/20/07 Order filed stating On December 3, 2007, a majority of the active judges of the Court voted to hear this case in banc. On December 12, 2007, the Court entered the order that the case be heard in banc.  See Fed. R. App. P. 35(a). The submissions should consider the effect of Gall v. United States, No. 06-7949, 552 U.S. — (2007), and Kimbrough v. United States, No. 06-6330, 552 U.S. — (2007).

The petitioner’s brief and appendix shall be filed by January 25, 2008.  The respondent’s brief, and any briefs amicus curiae, shall be filed by February 22, 2008. The petitioner’s reply brief shall be filed by March 7, 2008.  While the briefing schedule of the parties is to be strictly observed, extensions of the time to file briefs amicus curiae will be considered on a case-by-case basis.  Oral argument will be held on March 27, 2008 at 3 p.m. in the Ninth Floor Courtroom of the United States Courthouse, 500 Pearl Street, New York, New York.  We invite briefs amicus curiae from interested parties.

Notably, as detailed here, there was this terrific article in the New York Sun about the case, but the article did not report that the full Second Circuit was now to hear the case.

Because the court asked so nicely, I am already thinking about what I might say in an amicus brief.  I tend to support consideration of local conditions at sentencing, largely because I see the concept of “national sentencing uniformity” almost as a contradiction in terms given diverse federal caseloads and prosecutorial policies in the nation’s 94 districts.  But, that said, I do think there have to be some limits regarding how much local conditions can and should eclipse national sentencing norms in the sentencing of individual cases.