Federal Judiciary

United States v. Weisberg, No. 07-CR-066A, 2009 WL 1373676 (W.D.N.Y. May 15, 2009)

A United States District Judge was compelled to reverse and remand the sentencing decision of a United States Magistrate Judge after discovering several procedural errors.  The lesson to be learned is this: Make a good record.

First, the magistrate judge "erroneously presumed that a within-the-Guidelines sentence should be applied absent exceptional circumstances.  In his initial sentencing decision, the Magistrate Judge found that '[t]he factors defendant suggests should warrant either a downward departure or imposition of a non-Guidelines sentence, collectively are not so extraordinary to justify a departure.'  This was error ebcause the Supreme Court made clear in Gall that post-Booker, there is no requirement that a sentencing court find 'extraordinary circumstances' in order to justify the imposition of a non-Guidelines sentence."

Second, the magistrate judge "erroneously applied a presumption of reasonableness to the advisory Guidelines range. . . .  [T]he Supreme Court has made clear that no presumption of reasononableness should be applied by the sentencing court."

Finally, the magistrate judge "was not required to sentence the defendant within the advisory Guidelines range unless he articulated a specified policy disagreement with the Guidelines.  While it is true that such a disagreement may provide a reason for imposing a non-Guidelines sentence . . . it does not follow that the failure to disagree with the policy statements mandates the sentence be within the advisory Guidelines range."