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Federal Judiciary

: Second Circuit Sentencing Blog

Criticizing An Unsympathetic District Court

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United States v. Marino, No. 08-0615-cr (2d Cir. Feb. 17, 2009) (found here)

Dan Marino worked for hedge fund swindler Samuel Israel. He pled guilty for his involvement in that massive fraud, and entered into a cooperation agreement with the Government. The Guidelines recommended a 50 year term of imprisonment. The district court sentenced him to 20 years. Marino appealed, arguing that his sentence was both procedurally and substantively unreasonable. While the Second Circuit affirmed the sentence, it came awfully close to reversing based on substantive unreasonableness, issuing some pretty strong language concerning the district court's sentencing decision. Here's what it had to say:

We pause to note that we might ourselves have given greater weight than apparently did the district court to Marino's plight -- his almost complete deafness and accompanying sense of loneliness, his lack of self-esteem, his bouts with cancer, his apparent fear of and deference to Israel -- and his assistance to the government detailed in its "5K1 Letter" (noting his aid to the government in understanding the fraud, his immediate contrition and taking of responsibility upon discovery, and his contribution to the guilty pleas of his co-conspirators). But it is not for us to substitute our judgment for that of the district court, whose sentence was procedurally and substantively proper.

I fear that the fact that the Second Circuit came close to, but ultimately did not, reverse the sentence for substantive unreasonableness will only further weaken the opportunities for and possibility of any reversal based on substantive unreasonableness. And that begs the questions: What is substantive unreasonableness? What circumstances qualify for a finding of substantive unreasonableness?

Full post as published by Second Circuit Sentencing Blog on February 17, 2009 (boomark / email).