461 F. App'x 15
2d Cir.2012Background
- Folkes was sentenced on remand to 36 months for illegal reentry and 24 months consecutive for aggravated identity theft, based on a variance from a Guidelines range of 12–18 months.
- Folkes appeals the 36-month illegal reentry sentence as procedurally and substantively unreasonable.
- This court reviews for abuse of discretion in sentencing under Cavera and Gall standards.
- The district court identified the applicable Guidelines: offense level 13 and Criminal History Category I, but imposed a nonguidelines sentence via a variance.
- Folkes argued the court failed to determine his Criminal History Category before departing and failed to follow § 4A1.3 departure procedures.
- The court held there was no procedural error and that the variance was proper, with the court noting § 3553(a) factors were considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural validity of using a variance instead of a guideline departure | Folkes argues district court erred by not following departure procedures. | Folkes contends misapplication of guidelines and procedural missteps. | No procedural error; variance properly used to impose nonguidelines term. |
| Consideration of 3553(a) factors in imposing a variance | Court inadequately considered §3553(a) factors, especially mitigating weight of factors. | Court substantially considered §3553(a) factors and explained its reasons for variance. | Record shows consideration of §3553(a) factors; no requirement to reference every factor. |
| Avoidance of unwarranted disparities under §3553(a)(6) | Variance should reflect disparities with similarly situated defendants. | Court weighed relevant factors; disparity reference not required to be explicit. | No error; court need not reference §3553(a)(6) factor for validity. |
| Substantive reasonableness of a 36-month variance sentence for illegal reentry | Sentence is excessive and not within a reasonable range. | Totality of reasons supports a reasonable variance given Folkes’s history. | Sentence not clearly unreasonable; falls within the range of reasonable outcomes. |
Key Cases Cited
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (abuse-of-discretion standard for variances; calibrates reasonableness of non-Guidelines sentences)
- Gall v. United States, 552 U.S. 38 (2007) (deferential standard for reviewing sentences; reasonableness framework)
- United States v. Keller, 539 F.3d 97 (2d Cir. 2008) (departure/variance terminology and context in sentencing)
- United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006) (consideration of § 3553(a) factors and weight assignment)
- United States v. Pope, 554 F.3d 240 (2d Cir. 2009) (weighting of § 3553(a) factors permissible; appellate review of variance)
- United States v. Jones, 531 F.3d 163 (2d Cir. 2008) (range of reasonable sentences; avoidance of wholesale reversal of variances)
- United States v. Brown, 514 F.3d 256 (2d Cir. 2008) (no requirement to reference every § 3553(a) factor)
- United States v. Carr, 557 F.3d 93 (2d Cir. 2009) (presumption that district courts satisfied § 3553(a) duty absent contrary evidence)