June 9, 2007, 01:07 PM
Court Decision Restricts Gun Sentences
By JOSEPH GOLDSTEIN
Staff Reporter of the Sun
June 7, 2007
A federal appellate court just made it more difficult for federal judges in New York to impose stricter sentences for gun-related crimes.
Recently at least one federal judge here has been citing the danger that guns pose to cities as a reason to impose lengthier prison terms on federal defendants who commit gun crimes.
That practice will stop, following a 3-0 ruling by the 2nd U.S. Circuit Court of Appeals yesterday that instructs judges to not consider the level of local gun violence in handing down sentences. The court explained its decision as an effort to impose greater uniformity in federal sentencing across the country. Otherwise, the court said, it would "open the door" to unequal penalties for similar crimes in rural and urban areas.
The case involved an army veteran, Gerard Cavera, who is more than 70 years old. Cavera was convicted of illegally selling 16 guns from his home in Florida. Under the federal guidelines that judges are required to consider, Cavera was due to be sentenced to between 12 and 18 months and fined less than $30,000. A federal judge in Brooklyn, Charles Sifton, instead sentenced Cavera to two years imprisonment and fined him $60,000.
The 2nd Circuit ordered that Cavera be resentenced.
Judge Richard Cardamone wrote the decision, which was joined by judges Guido Calabresi and Rosemary Pooler.
June 9, 2007, 04:59 PM
Sentencing guidelines have been controversial for years. The US Supreme Court was going to make a definitive ruling on how closely federal judges had to follow them, however in a twist of fate that is similar to what happened in the Miller Case, the defendant was murdered and the case has been been dismissed:
Man's death has 'far-reaching effect'
By Robert Patrick
ST. LOUIS POST-DISPATCH
Investigators are still sorting out why Mario Claiborne was following a stolen pickup last week and just how the pursuit led to gunfire and Claiborne's death.
But the killing has created other legal twists, as it forced the dismissal of Claiborne's closely watched case before the U.S. Supreme Court, which was expected to rule within the next few weeks. Justices were to clarify how much discretion federal judges have when applying sentencing guidelines.
Claiborne, 23, of St. Louis, was driving a vehicle that had three passengers when he pulled into a service station at 1551 South Grand Boulevard just before midnight on May 29.
A passenger, Terrill Lamarr Newland, 17, got out of Claiborne's vehicle and took off in a Dodge Dakota pickup idling at the station, according to authorities. Claiborne was following in his vehicle when one of the former occupants of the pickup began shooting, and Claiborne was hit.
He drove himself to a nearby hospital, where he died early the next morning.
The day after Claiborne's death, his lawyer, Michael Dwyer, an assistant federal public defender, notified the Supreme Court that Claiborne had been killed. The case was effectively dismissed Monday.
Without Claiborne, there is "no case or controversy," and the court must have a case or controversy with interested parties to proceed, said Assistant U.S. Attorney Cris Stevens, who prosecuted Claiborne on drug charges.
Claiborne's appeal focused on whether federal judges can sentence defendants to less than what the sentencing guidelines recommend.
The guidelines were intended to make criminal sentences more uniform among federal courts across the country and were considered mandatory until the Supreme Court ruled in 2005 that the guidelines were advisory. Critics say that the appeals courts, through their rulings, have effectively made the guidelines mandatory again.
Claiborne had no criminal record before he pleaded guilty to two drug charges involving cocaine and faced 37 to 46 months in federal prison. On March 28, 2005, U.S. District Judge Carol E. Jackson instead sentenced Claiborne to 15 months, citing Claiborne's age, his lack of a prior criminal record and the small quantity of drugs.
Federal prosecutors appealed the low sentence, and in February 2006, the 8th U.S. Circuit Court of Appeals ruled that Jackson had applied an extraordinary variance that is not supported by comparably extraordinary circumstances. Claiborne's attorneys then asked the Supreme Court to intervene.
Claiborne's case already had traveled an improbable road by reaching the Supreme Court, where oral arguments were held in February. Thousands of people seek review by the high court and few succeed. And of those who get the court's attention, even fewer are killed before their case is heard.
"Once people make it to the Supreme Court, we don't tend to lose them," said Tom Goldstein, who heads the Supreme Court practice of Washington law firm Akin Gump Strauss Hauer & Feld.
Stanford Law School Professor Jeff Fisher said, "I would think this is a once-a-decade kind of thing." Fisher has clerked for and argued in front of the high court.
The case had been watched across the country and potentially could have affected thousands of criminal defendants and a growing backlog of cases awaiting resolution of the issue.
About 9,800 of the more than 70,000 defendants sentenced in federal court in fiscal year 2006 got similar departures from guideline sentences, according to Justice Department statistics.
"You've got a lot of different parties that see this as having a far-reaching effect," Stevens said.
Both Dwyer and government lawyers have proposed an alternative case. The case, out of Cape Girardeau, also involves the 8th U.S. Circuit Court of Appeals, cocaine and a judge who sentenced Terrence Beal to less than half of the recommended prison time of 15 2/3 years.
"Just because Mr. Claiborne passed away, the issue didn't," said Mike Reap, first assistant U.S. attorney. "All of us want to know what we are supposed to do."
The court could swap in the Beal case, announcing its decision as soon as this afternoon. Douglas Berman, an Ohio State University law professor and sentencing expert, said the court also could select a similar appeal or include the bulk of its opinion from Claiborne into a companion case that also deals with sentencing issues.
Meanwhile, prosecutors have charged Newland with stealing a motor vehicle and explored charging him with felony murder because a death resulted from the crime. Prosecutors have not charged the gunman, whom they haven't identified publicly.
Claiborne served his original sentence and was released in May of last year. Jackson had postponed his resentencing while the appeal was pending.
Berman said he hesitates to suggest that Claiborne might not have been where he was on the night of May 29 had his case been decided sooner, but added, "If any of this moved quicker, we would have had a ruling before Claiborne died."
Adam Sichko of the Post-Dispatch contributed to this report.
The Supreme Court is going to visit this issue and my gut feeling is that judges are going to be given the power to sentence as they see fit.
June 1, 2009, 06:39 PM
but, according to this AP Article (http://www.google.com/hostednews/ap/article/ALeqM5hoe1ezkERSnNOU2GFIXoSNDGqe6QD98HV0S00), the Appeals Court's upholding his over-max sentence had Sotomayor's dissent from the majority:
"Judge Sonia Sotomayor, who last week was nominated to the high court, took issue with her colleagues on the 2nd U.S. Circuit Court of Appeals who upheld the sentence. Sotomayor said in a lengthy dissent that only in rare instances should trial judges set prison terms that are outside the federal guidelines."
IMHO: This dissent does NOT indicate her personal support for Cavera at all--but indicates a real willingness to see mandated sentencing that cripple a judiciary.
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