05-4591 | Omnilex

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# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2007

(En Banc Rehearing: March 27, 2008

Decided: December 4, 2008)

Docket No. 05-4591-cr

UNITED STATES,
Appellee,
V.
GERARD CAVERA, aka Gerry Lake, and PETER ABBADESSA,
Defendants-Appellants.

Before: JACOBS, Chief Judge, CARDAMONE, CALABRESI, CABRANES, STRAUB,+
POOLER, SACK, SOTOMAYOR, KATZMANN, PARKER, RAGGI, WESLEY, HALL, and
LIVINGSTON, Circuit Judges.

Appeal from a judgment of conviction entered in the United States District Court for the
Eastern District of New York (Sifton, J.), sentencing Defendant-Appellant Cavera to an above-
Guidelines sentence for the offense of conspiring to deal in and to transport firearms in violation

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Senior Circuit Judge Cardamone was a member of the initial three-judge panel that heard this
appeal, and is therefore eligible to participate in en banc rehearing. 28 U.S.C. § 46(c)(1).

Senior Circuit Judge Straub was an active member of the court when we heard the case, and is
therefore eligible to participate in en banc rehearing. 28 U.S.C. § 46(c)(2).

of 18 U.S.C. § 371. A panel of this Court held that the district court erred in its reliance on
specific characteristics of the locality where the firearms were transported to justify a higher
sentence, and issued an opinion vacating the judgment and remanding the case for further
proceedings. United States v. Cavera, 505 F.3d 216 (2d Cir. 2007).

After en banc rehearing, the panel opinion is vacated and the judgment of the district
court is affirmed.

TARYN A. MERKL, Assistant United States Attorney
(David C. James, Assistant United States Attorney,
of counsel), for Benton J. Campbell, United States
Attorney for the Eastern District of New York,
Brooklyn, N.Y., for Appellee.

JEFFREY RABIN, Brooklyn, N.Y., for Defendant-
Appellant Gerard Cavera.

Leonard Koerner & Deborah A. Brenner, for
Michael A. Cardozo, Corporation Counsel of the
City of New York, New York, N.Y., for Amicus
Curiae the City of New York

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CALABRESI, Circuit Judge, with whom Chief Judge JACOBS, and Judges CABRANES, SACK,
KATZMANN, PARKER, RAGGI, WESLEY, HALL, AND LIVINGSTON join, and with whom Judges
CARDAMONE, STRAUB, POOLER, and SOTOMAYOR join as to Parts I and II.A:

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Defendant-Appellant Gerard Cavera appeals from a judgment entered on August 23,
2005 in the United States District Court for the Eastern District of New York.1 Cavera pled
guilty to a firearms trafficking offense. The district court imposed an above-Guidelines sentence

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after finding that the Sentencing Guidelines failed to take into account the need to punish more

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The judgment entered against Cavera's co-defendant, Abbadessa, was summarily affirmed by
this Court on May 19, 2006.

severely those who illegally transport guns into areas like New York City. On appeal, Cavera
contends, among other things, that the district court erred when it relied on local conditions to
justify a higher sentence.

A panel of this Court held that the district court rested its decision on impermissible
considerations, and determined that the sentence should be vacated and the case remanded for
resentencing. United States v. Cavera, 505 F.3d 216 (2d Cir. 2007). We ordered rehearing en
banc, and directed the parties to submit briefs on the effect of the Supreme Court's intervening
decisions in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S.
Ct. 558 (2007). With the benefit of the guidance afforded by those rulings, we now affirm the
judgment of the district court.

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I.
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Abbadessa, Lucania, and the confidential informant returned to New York on separate flights.

Cavera, a septuagenarian army veteran with residences in New York and Florida, was
arrested by the FBI with the aid of a confidential informant. Beginning in July 2003, the
informant purchased guns illegally in New York City on several occasions from a man named
Peter Abbadessa. Abbadessa told the confidential informant that his uncle, Anthony Lucania,
had a friend named Gerry (Cavera), who acted as Abbadessa's Florida gun supplier. In April
2004, the confidential informant flew to Florida, along with Abbadessa and Lucania, for the
express purpose of procuring firearms. At the FBI's direction, the informant paid Lucania
$11,500 for sixteen guns. Abbadessa and Lucania then went to Cavera's residence in Deerfield
Beach, Florida, where they gave Cavera money in exchange for two boxes containing sixteen
firearms. The boxes were later given to the informant, who turned them over to the FBI.

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On June 23, 2004, a grand jury returned an indictment charging Cavera, Abbadessa, and
Lucania with various violations of the federal gun trafficking laws. Cavera pled guilty to one
count of conspiracy to deal in and to transport firearms, in violation of 18 U.S.C. § 371.

Cavera first appeared for sentencing on June 9, 2005. At this point, Judge Sifton gave
notice that he was considering an above-Guidelines sentence, "simply because I think the
sentencing guidelines may understate the seriousness of this offense because of the consequences
for the community of bringing or transporting . . . firearms into New York City." To guide the
parties, Judge Sifton referred them to articles written by himself and by then-District Judge
Raggi on local variation in federal sentencing. See Charles P. Sifton, Theme and Variations: The
Relationship Between National Sentencing Standards and Local Conditions, 5 Fed. Sent'g Rep.
303 (1993); Reena Raggi, Local Concerns, Local Insights: Further Reasons for More Flexibility
in Guideline Sentencing, 5 Fed. Sent'g Rep. 306 (1993). The district court adjourned the
proceedings to give the parties an opportunity to address the issue.

The parties appeared again for sentencing on July 28, 2005. The court determined that
the Guidelines recommended a sentence of twelve to eighteen months' imprisonment and a fine
of $3,000 to $30,000. But Judge Sifton concluded that a higher sentence was appropriate, stating
in open court that the Guidelines range did not adequately meet the "crying need to do what can
be done to deter gun trafficking into the large metropolitan area[s] of this country." At the same
time, the district court filed a detailed written opinion further explaining its reasoning. United
States v. Lucania, 379 F. Supp. 2d 288 (E.D.N.Y. 2005).

In this opinion, Judge Sifton began by noting that the Guidelines, "[i]n the pursuit of
national uniformity in sentencing practices," do not take local circumstances into account, and

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instead reflect a national average. Id. at 293-94. For this reason, the Guidelines were "less
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persuasive" in Cavera's case than they would otherwise be. Id. at 296.

The district court explained its decision to impose an above-Guidelines sentence in terms

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of two of the § 3553(a) factors. Focusing first on the need for the sentence to reflect the
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seriousness of the offense, as directed by 18 U.S.C. § 3553(a)(2)(A), Judge Sifton found that
Cavera's offense was more harmful than the national average offense contemplated by the
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Guidelines. "Firearms smuggled into New York City commonly end up in the hands of those
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who could not otherwise legally acquire them, are frequently used for illegitimate purposes, and
have the potential to create a substantially greater degree of harm when in an urban environment
. . . than in the United States generally." Lucania, 379 F. Supp. 2d at 295.2 In this respect, the

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district court referred to statistical studies indicating that homicide rates were substantially higher
in large urban areas than in suburban and rural locales. Id. Judge Sifton also noted that
population density in the state of New York, in New York City, and especially in particular parts
of the Eastern District of New York, exceeded the national average. Id. at 295 n.3.

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The district court also relied on a greater-than-average need, in this case, to achieve
strong deterrence. See 18 U.S.C. § 3553(a)(2)(B). The purpose of gun trafficking laws "is to
prevent lax firearm laws in one state from undermining the more restrictive laws of other states."
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Lucania, 379 F. Supp. 2d at 295. In states with strict gun laws, like New York, a higher
percentage of guns used in crimes arrive from out of state than is the case in jurisdictions with
less restrictive firearms laws. New York's strict gun control laws create a "larger black market"
for guns than in places with less strict laws. Id. The district court cited an article describing
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New York City as "one of the 'unusual areas' to which running guns is a profitable enterprise."

2 There was evidence suggesting that Cavera knew the guns were destined for New York.

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Id. (citing Gary Kleck, BATF Gun Trace Data and the Role of Organized Gun Trafficking in
Supplying Guns to Criminals, 18 St. Louis Univ. Pub. L. Rev. 23, 41 (1999)). Accordingly,

Judge Sifton concluded that a more severe penalty for trafficking guns into New York City was
necessary to bring about adequate deterrence. Lucania, 379 F. Supp. 2d at 295-96.

The district court noted next that a sentencing judge is also directed to consider "the need
to avoid unwarranted sentencing disparities among defendants with similar records who have
been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). Judge Sifton recognized that his
approach would lead to different sentences for otherwise-similar firearms traffickers in different
federal districts. Such disparities, however, were not "unwarranted." Lucania, 379 F. Supp. 2d
at 296. Rather, they were based on "objectively demonstrated, material differences between the
impact of the offenses in those districts."3 Id.

In one respect, Cavera benefited from Judge Sifton's willingness to disagree with the
Guidelines. Judge Sifton noted that the Guidelines also failed to take into account "the inverse
relationship between age and recidivism." Id. at 298. Judge Sifton stated that he would consider
the lesser need for specific deterrence when sentencing Cavera, who was over seventy. Id. at
297-98.

On these bases, the court imposed a sentence of twenty-four months' imprisonment - six
months longer than the top end of the applicable Guidelines range. Cavera was also sentenced to
three years' supervised release, a $60,000 fine, and a $100 special assessment.

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When considering the issue of unwarranted disparities, the district court pointed out that "[a]
conviction for similar conduct in a New York state court would likely earn [Cavera] a
substantially more severe sentence than that called for by the Guidelines." Lucania, 379 F. Supp.
2d at 296.

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Cavera appealed the sentence. Initially, the Government agreed with Cavera that the
sentence could not stand.4 Writing before Gall and Kimbrough, a panel of this Court held that
Judge Sifton erred in his analysis of the § 3553(a) factors "by sentencing Cavera on the basis of a
policy judgment concerning the gravity of firearms smuggling into a heavily populated area, like
New York City, rather than on circumstances particular to the individual defendant and his
crime." Cavera, 505 F.3d at 222 (citing United States v. Rattoballi, 452 F.3d 127, 133 (2d Cir.

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the case en banc. See Fed. R. App. P. 35(a).

2006)). For this reason, the panel determined that the sentence was procedurally and
substantively unreasonable. Id. at 225. A majority of the Court's active judges voted to rehear

II.

This Court employs the en banc procedure sparingly. But when we do hear a case en
banc, and we are in substantial agreement, an en banc opinion gives us the opportunity to speak
somewhat more broadly, for the purpose of giving guidance to district courts in this Circuit and
to future panels of this Court, than we normally do as individual panels. Cf. Jon O. Newman, In
Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev. 365, 382 (1984)
("[A]n occasional in banc decision is useful to provide guidance in a frequently litigated area of
the law .... "). Conversely, where our members possess significantly differing views on a
particular issue, it is often wise to avoid speaking as an en banc Court unless the point is one that
is strictly necessary to decide the case. See Jon O. Newman, In Banc Practice in the Second

4 The government now contends that, in light of Gall and Kimbrough, the sentence is reasonable.

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Circuit, 1984-1988, 55 Brook. L. Rev. 355, 369 (1989) ("[F]requent use of the in banc practice
surely poses a threat to [collegiality]."). The case before us presents issues of both sorts.

In United States v. Booker, the Supreme Court held that the mandatory application of the
Sentencing Guidelines was incompatible with the Sixth Amendment. 543 U.S. 220, 226-27
(2005). Accordingly, the Court excised the portion of the Sentencing Reform Act of 1984 that
8 ordinarily required district courts to impose Guidelines-range sentences. See id. at 245-46
(Remedial Op., Breyer, J.); see also 18 U.S.C. § 3553(b)(1). In Justice Breyer's "Remedial
Opinion," the Court retained an important role for the Sentencing Commission, leaving
untouched the statutory direction to district courts that they should consult the Guidelines range
when imposing sentence. See Booker, 543 U.S. at 245-46 (Remedial Op., Breyer, J.); see also 18
U.S.C. § 3553(a). Booker rendered the Guidelines "effectively advisory," and permitted
sentencing courts to tailor the appropriate punishment to each offense in light of other concerns.
543 U.S. at 245 (Remedial Op., Breyer, J.). After Booker, appellate courts were to review
sentences for "unreasonableness." Id. at 261. (Remedial Op., Breyer, J.) (internal quotation
marks and alteration omitted). Review for "unreasonableness" amounts to review for abuse of
discretion. See Gall, 128 S. Ct. at 594 ("Our explanation of 'reasonableness' review in the
Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review
now applies to appellate review of sentencing decisions."); Kimbrough, 128 S. Ct. at 576 ("The
ultimate question in Kimbrough's case is 'whether the sentence was reasonable-i.e., whether

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the District Judge abused his discretion in determining that the § 3553(a) factors supported a
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sentence of [15 years] and justified a substantial deviation from the Guidelines range.") (quoting

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Gall, 128 S. Ct. at 600); see also United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)

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(stating that reasonableness review is "akin to review for abuse of discretion").5

The resulting regime is, at first glance, beguilingly simple. The district courts have
discretion to select an appropriate sentence, and in doing so are statutorily bound to consider the
factors listed in § 3553(a), including the advisory Guidelines range. The courts of appeals then

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review for abuse of discretion.

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Booker, however, left unanswered a number of questions, both for sentencing judges and
for those charged with the task of reviewing their work on appeal. Two of these are of particular
relevance to this case. One question especially relevant to sentencing judges is to what extent
may a district court, consistent with its statutory duty to consider the Guidelines, base its
11 sentence on a policy disagreement with the Sentencing Commission? The second question,
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especially relevant to courts of appeals, is to what extent must appellate courts defer to the
decisions of district courts? As Judge Henry Friendly presciently noted, abuse of discretion is
not a uniform standard of review. Henry J. Friendly, Indiscretion About Discretion, 31 Emory
L.J. 747, 756 (1982). Rather, where an appellate court reviews for abuse of discretion, "'the
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scope of review will be directly related to the reason why the category or type of decision is
committed to the trial court's discretion in the first instance." Id. at 764 (quoting United States
v. Criden, 648 F.2d 814, 817 (3d Cir. 1981)). "[D]efining the proper scope of review of trial
court determinations requires considering in each situation the benefits of closer appellate
scrutiny as compared to those of greater deference." Id. at 756. In the sentencing context, the

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The Supreme Court has suggested that the "unreasonableness" standard is a particularly
deferential form of abuse-of-discretion review. See Gall, 128 S. Ct. at 591; see also Concrete
Pipe & Prods. of Cal. Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993).

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question is further complicated by the presence of a third institution, the Sentencing

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Commission.

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The Supreme Court recently offered further guidance. See Gall v. United States, 128 S.
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Ct. 586 (2007); Kimbrough v. United States, 128 S. Ct. 558 (2007); Rita v. United States, 127 S.
Ct. 2456 (2007). In these cases, the Court expressed its view of the respective competencies of
the Sentencing Commission, the district judges, and the courts of appeals. In some respects, the
7 Supreme Court's recent decisions require us to modify our own practices. From those opinions,
and from our own experience with the advisory Guidelines system, we derive the following
principles.

A sentencing judge has very wide latitude to decide the proper degree of punishment for
an individual offender and a particular crime. In addition to taking into account the Guidelines
range, the district court must form its own view of the "nature and circumstances of the offense
and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). The sentencing
judge is directed, moreover, to consider: a) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for that offense; b) the need to afford
adequate deterrence to criminal conduct; c) the need to protect the public from further crimes by
the defendant; and d) the need for rehabilitation. Id. § 3553(a)(2). Additionally, district courts
must take into account: the kinds of sentences available, id. § 3553(a)(3); any pertinent
Sentencing Commission policy statement, id. § 3553(a)(5); the need to avoid unwarranted
sentence disparities among similarly situated defendants, id. § 3553(a)(6); and, where applicable,
the need to provide restitution to any victims of the offense, id. § 3553(a)(7).

Even after Gall and Kimbrough, sentencing judges, certainly, are not free to ignore the
Guidelines, or to treat them merely as a "body of casual advice." See United States v. Crosby,

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397 F.3d 103, 113 (2d Cir. 2005). A district court should normally begin all sentencing
proceedings by calculating, with the assistance of the Presentence Report, the applicable
Guidelines range. Gall, 128 S. Ct. at 596; see also Crosby, 397 F.3d at 112 (describing
situations in which "precise calculation of the applicable Guidelines range may not be
necessary"). The Guidelines provide the "starting point and the initial benchmark" for
sentencing, Gall, 128 S. Ct. at 596, and district courts must "remain cognizant of them
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throughout the sentencing process," id. at 596 n.6. It is now, however, emphatically clear that
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the Guidelines are guidelines - that is, they are truly advisory. A district court may not
9 presume that a Guidelines sentence is reasonable; it must instead conduct its own independent
10 review of the sentencing factors, aided by the arguments of the prosecution and defense. District
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judges are, as a result, generally free to impose sentences outside the recommended range. When
they do so, however, they "must consider the extent of the deviation and ensure that the
13 justification is sufficiently compelling to support the degree of the variance." Id. at 597. In this
way, the district court reaches an informed and individualized judgment in each case as to what
is "sufficient, but not greater than necessary" to fulfill the purposes of sentencing. 18 U.S.C. §
3553(a).

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After Gall and Kimbrough, appellate courts play an important but clearly secondary role
in the process of determining an appropriate sentence. We review the work of district courts
under a "deferential abuse-of-discretion standard." Gall, 128 S. Ct. at 591. This form of
appellate scrutiny encompasses two components: procedural review and substantive review.

6 In this respect, the district court's reliance on the Guidelines differs from that of appellate
courts which may, but need not, treat a Guidelines sentence as presumptively reasonable. See
Rita, 127 S. Ct. at 2462; see also Gall, 128 S. Ct. at 595, 597.

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As to substance, we will not substitute our own judgment for the district court's on the
question of what is sufficient to meet the § 3553(a) considerations in any particular case. See
United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). We will instead set aside a district
court's substantive determination only in exceptional cases where the trial court's decision
"cannot be located within the range of permissible decisions." United States v. Rigas, 490 F.3d
208, 238 (2d Cir. 2007) (internal quotation marks omitted). To the extent that our prior cases
may be read to imply a more searching form of substantive review, we today depart from that
understanding. See, e.g., United States v. Cutler, 520 F.3d 136, 164, 167 (2d Cir. 2008).7

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This degree of deference is only warranted, however, once we are satisfied that the
district court complied with the Sentencing Reform Act's procedural requirements, and this
requires that we be confident that the sentence resulted from the district court's considered
judgment as to what was necessary to address the various, often conflicting, purposes of
sentencing. See In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008) ("Given the broad
substantive discretion afforded to district courts in sentencing, there are concomitant procedural
requirements they must follow.").

A district court commits procedural error where it fails to calculate the Guidelines range
(unless omission of the calculation is justified, see Crosby, 397 F.3d at 112), makes a mistake in
its Guidelines calculation, or treats the Guidelines as mandatory. Gall, 128 S. Ct. at 597. It also
errs procedurally if it does not consider the § 3553(a) factors, or rests its sentence on a clearly
erroneous finding of fact. Id. Moreover, a district court errs if it fails adequately to explain its
chosen sentence, and must include "an explanation for any deviation from the Guidelines

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This does not mean that we are questioning the result reached in these cases. See Cutler, 520
F.3d at 176 (Pooler, J., concurring).

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range." Id. Where we find significant procedural error, one proper course would be to remand
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to the district court so that it can either explain what it was trying to do, or correct its mistake and
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exercise its discretion anew, see, e.g., United States v. Williams, 524 F.3d 209, 215-17 (2d Cir.
2008), rather than for the appellate court to proceed to review the sentence for substantive
reasonableness. See Gall, 128 S. Ct. at 597 ("Assuming that the district court's sentencing
decision is procedurally sound, the appellate court should then consider the substantive
7 reasonableness of the sentence imposed under an abuse-of-discretion standard." (emphasis
added)).

These broad statements, however, require more specificity, both as to substantive and
procedural reasonableness review if they are to guide us in particular cases, including the one
before us. Thus, when conducting substantive review, we take into account the totality of the
12 circumstances, giving due deference to the sentencing judge's exercise of discretion, and bearing
in mind the institutional advantages of district courts. Rita, 127 S. Ct. at 2466-67 ("In
sentencing, as in other areas, district judges at times make mistakes that are substantive ...
. Circuit courts exist to correct such mistakes when they occur."). Unlike some of our sister
circuit courts, we do not presume that a Guidelines-range sentence is reasonable. Fernandez,
443 F.3d at 27; see Rita, 127 S. Ct. at 2462 (permitting, but not requiring, the courts of appeals to
adopt a presumption of reasonableness for within-Guidelines sentences); see also Gall, 128 S.
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Ct. at 597 ("If the sentence is within the Guidelines range, the appellate court may, but is not
required to, apply a presumption of reasonableness"). Nor can we presume that a non-Guidelines
sentence is unreasonable, or require "extraordinary" circumstances to justify a deviation from the

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Guidelines range. Gall, 128 S. Ct. at 595. Where, as in the case before us, we review a non-

8 For more discussion of what this requirement entails, and what it does not, see infra page 18.

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Guidelines sentence, we may "take the degree of variance into account and consider the extent of
a deviation from the Guidelines." Id. But we must not employ a "rigid mathematical formula
that uses the percentage of a departure as the standard for determining the strength of the
justifications required for a specific sentence." Id.

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In reviewing sentences for reasonableness, we are, of course, bound by 18 U.S.C. § 3661.
(stating that "[n]o limitation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a court of the United States
may receive and consider for the purpose of imposing an appropriate sentence"). Thus, at the
procedural part of review, we will not categorically proscribe any factor "concerning the
background, character, and conduct" of the defendant, with the exception of invidious factors.
See, e.g., United States v. Kaba, 480 F.3d 152, 156-57 (2d Cir. 2007); see also United States v.

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Watts, 519 U.S. 148, 152 (1997) (citing § 3661 in concluding that reviewing courts cannot
"invent a blanket prohibition against considering certain types of evidence at sentencing");
United States v. Concepcion, 983 F.2d 369, 387 (2d Cir. 1992) (recognizing sentencing court's
authority to "take into account any information known to it"). But this does not grant district
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courts "a blank check to impose whatever sentences suit their fancy." United States v. Jones,
531 F.3d 163, 174 (2d Cir. 2008). At the substantive stage of reasonableness review, an
appellate court may consider whether a factor relied on by a sentencing court can bear the weight
assigned to it. To be sure, this review is deferential. See Gall, 128 S. Ct. at 597 (holding that
appellate court "must give due deference" to the district court's determination as to the "extent"
of variance warranted by a given factor). As a result, we do not consider what weight we would
ourselves have given a particular factor. Id. Rather, we consider whether the factor, as
explained by the district court, can bear the weight assigned it under the totality of circumstances

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in the case. Such an approach is consistent with and follows from the Supreme Court's emphasis
on "individualized" sentencing, id, because it allows district courts to explain why factors that
might not be relevant in most cases are relevant in the case at issue. At the same time, it ensures
that appellate review, while deferential, is still sufficient to identify those sentences that cannot
be located within the range of permissible decisions.

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Accordingly, we will continue to patrol the boundaries of reasonableness, while heeding
the Supreme Court's renewed message that responsibility for sentencing is placed largely in the
precincts of the district courts. In at least one respect, Gall and Kimbrough manifestly require us
to give more latitude to sentencing judges than this Court did before. After the Supreme Court's
decision in Booker but before its decisions in Kimbrough and Gall, we suggested that it was not
permissible for a district court to rest its decision on a policy judgment applicable to an entire
category of offenses. See, e.g., Cavera, 505 F.3d at 223; United States v. Trupin, 475 F.3d 71,
76 (2d Cir. 2007), vacated, 128 S.Ct. 862 (2008); United States v. Park, 461 F.3d 245, 249 (2d
Cir. 2006); United States v. Castillo, 460 F.3d 337, 361 (2d Cir. 2006), abrogated by Kimbrough,
128 S. Ct. 558; cf. United States v. Wills, 476 F.3d 103, 109 (2d Cir. 2007); United States v.

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Rattoballi, 452 F.3d 127, 133 (2d Cir. 2006). That, we now know, is not the case. As the
Supreme Court strongly suggested in Kimbrough, a district court may vary from the Guidelines
range based solely on a policy disagreement with the Guidelines, even where that disagreement
applies to a wide class of offenders or offenses. See Kimbrough, 128 S. Ct. at 574-75; see also
United States v. Regalado, 518 F.3d 143, 147 (2d Cir. 2008).

When, moreover, we examine a district court's justification for differing from the

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Guidelines recommendation, our review must be informed by the "discrete institutional

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strengths" of the Sentencing Commission and the district courts. Kimbrough, 128 S. Ct. at 574. 9
As a result, a district court's decision to vary from the Guidelines "may attract greatest respect
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when the sentencing judge finds a particular case outside the 'heartland' to which the
Commission intends individual Guidelines to apply." Id. at 574-75 (internal quotation marks
4

omitted). Where, instead, the sentencing judge varies from the Guidelines "based solely on the
5

judge's view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a
6

7
mine-run case," the Supreme Court has suggested that "closer review may be in order." Id. at 575

8
(internal quotation marks omitted). Nevertheless, in Kimbrough itself, the Supreme Court found
that no "closer review" was warranted where a district court based its sentence on a policy
disagreement with the 100-to-1 crack cocaine vs. powder cocaine weight ratio, because the crack
cocaine Guidelines are not based on empirical data and national experience, and hence "do not
exemplify the Commission's exercise of its characteristic institutional role." Id.

We do not, however, take the Supreme Court's comments concerning the scope and
nature of "closer review" to be the last word on these questions. More will have to be fleshed
out as issues present themselves. For instance, we note that some Guidelines enhancements and
reductions apply without modulation to a wide range of conduct. The Armed Career Criminal
Guidelines, to take one example, sharply increase the recommended sentences for firearms
offenses where the defendant has a prior conviction for a "crime of violence." U.S.S.G. §
2K2.1(a). The Guidelines' definition of the term "crime of violence," however, includes a wide

9 Thus Kimbrough distinguishes between cases where a district court disagrees with Guidelines
that were formulated based on special expertise, study, and national experience and those that
were not and therefore "do not exemplify the Commission's exercise of its characteristic
institutional role." See Kimbrough, 128 S. Ct. at 575.

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3
spectrum of offenses of varying levels of seriousness, from, on the one hand, murder or rape, to,
on the other hand, attempted burglary of a dwelling. Id. § 4B1.2(a)(2). Similarly, many
Guidelines such as those covering "offenses involving taxation," U.S.S.G. § 2T4.1, "antitrust
4
5
6
7
8
9
offenses," see id. § 2R1.1, and larceny, embezzlement, fraud, and similar crimes, see id. § 2B1.1,
drastically vary as to the recommended sentence based simply on the amount of money
involved.10 Here again a district court may find that even after giving weight to the large or
small financial impact, there is a wide variety of culpability amongst defendants and, as a result,
impose different sentences based on the factors identified in § 3553(a). Cf. United States v.
Ebbers, 458 F.3d 110, 129 (2d Cir. 2006) (concluding that the sentencing disparity between co-
10 defendants in a securities fraud case was reasonable in light of the "varying degrees of
culpability and cooperation between the various defendants"). Such district court decisions, if
adequately explained, should be reviewed especially deferentially.

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decision is discretionary, the need for explanation has itself been modified.

But what does the procedural requirement, that the district court must explain its reasons
for its chosen sentence, entail? The statutory scheme has long required sentencing judges, "at
the time of sentencing," to state their reasons for imposing the particular sentence "in open
court." 18 U.S.C. § 3553(c). And where a non-Guidelines sentence is selected, the district court
must also explain its reasons for doing so "with specificity in the written order of judgment and
commitment." Id. § 3553(c)(2). Now that the Guidelines are advisory, and the sentencing

10 For tax offenses, the measure is the amount of "tax loss." U.S.S.G. § 2T4.1. For antitrust
offenses, the measure is "volume of commerce attributable to the defendant." Id. § 2R1.1(b)(2).
For theft, embezzlement, and similar crimes, it is the amount of loss. Id. § 2B1.1(b)(1).

1
2

3
4

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9

Requiring judges to articulate their reasons serves several goals. Most obviously, the
requirement helps to ensure that district courts actually consider the statutory factors and reach
reasoned decisions. The reason-giving requirement, in addition, helps to promote the perception
of fair sentencing. See Rita, 127 S. Ct. at 2468 ("Confidence in a judge's use of reason underlies
the public's trust in the judicial institution. A public statement of those reasons helps provide the
public with the assurance that creates that trust."). Furthermore, the practice of providing
reasons "helps [the sentencing process] evolve" by informing the ongoing work of the
Sentencing Commission. Id. at 2469. Finally, for our own purposes, an adequate explanation is
a precondition for "meaningful appellate review." Gall, 128 S. Ct. at 597. We cannot uphold a
discretionary decision unless we have confidence that the district court exercised its discretion
and did so on the basis of reasons that survive our limited review. Without a sufficient
explanation of how the court below reached the result it did, appellate review of the
reasonableness of that judgment may well be impossible.

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As a result, in its explanation the district court must satisfy us that it has "considered the
parties' arguments" and that it has a "reasoned basis for exercising [its] own legal
decisionmaking authority." Rita, 127 S. Ct. at 2468. But, what is adequate to fulfill these
purposes necessarily depends on the circumstances. As we have often said, we do not require
"robotic incantations" that the district court has considered each of the § 3553(a) factors.
Crosby, 397 F.3d at 113 (quotation marks omitted); see also Fernandez, 443 F.3d at 30 (noting
that "we presume, in the absence of record evidence suggesting otherwise, that a sentencing
judge has faithfully discharged her duty to consider the statutory factors"). Sentencing is a
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22
responsibility heavy enough without our adding formulaic or ritualized burdens. And, a brief
23
statement of reasons will generally suffice where the parties have addressed only

1
"straightforward, conceptually simple arguments" to the sentencing judge. Rita, 128 S. Ct. at
2468. A district judge imposing a non-Guidelines sentence, however, should say why she is
doing so, bearing in mind, once again, that "a major departure [from the Guidelines] should be
supported by a more significant justification than a minor one," Gall, 128 S. Ct. at 597, and that
varying from the Guidelines in a "mine-run" case may invite closer appellate review, especially
when the Guidelines at issue are a product of traditional empirical and experiential study,
Kimbrough, 128 S. Ct. at 575.

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6

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When all is said and done though, once we are sure that the sentence resulted from the
reasoned exercise of discretion, we must defer heavily to the expertise of district judges. This
circumspect form of review, it is true, may result in substantial variation among district courts.
But "some departures from uniformity [are] a necessary cost" of the Booker remedy. Id. at 574.
12 And in its recent cases, the Supreme Court has made clear its view that disparities in sentences
13
imposed by different district judges are more likely to reflect justified differences than are those
arising from differences of opinion among appellate panels. This last point may not be easy for
appellate panels to accept, but we believe that it is what the Supreme Court has instructed.
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15
16
In this respect, we emphasize that sentencing discretion is like an elevator in that it must
run in both directions. Under Gall, Kimbrough, and Irizarry v. United States, 128 S. Ct. 2198
(2008), district courts have the power to impose sentences both above and below the Guidelines
range. See Irizarry, 128 S. Ct. at 2204 (upholding a district court's imposition of an above-
Guideline sentence); Gall, 128 S. Ct. at 600-02 (upholding a district court's decision to impose a
non-custodial sentence where the Guidelines recommended at least thirty months in prison);
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22
Kimbrough, 128 S. Ct. at 576 (upholding a district court's decision to impose a sentence four-

and-a-half years lower than the bottom end of the Guidelines range, where the district court
found that the crack cocaine Guidelines overstated the need to punish the defendant).

How do these considerations apply in the case before us? We begin by asking whether
the court below committed any "significant procedural error." Gall, 128 S. Ct. at 597. We find
no error in the district court's calculation of the Guidelines range.11 Judge Sifton, moreover,
clearly considered the Guidelines, and certainly did not treat that range as mandatory nor
presume that it was reasonable.

Cavera contends that the district court erred procedurally by failing to give him an
adequate advance explanation of the court's intent to impose an above-Guidelines sentence.
Under Federal Rules of Criminal Procedure 32(h) and 32(i)(1)(C), it appears that a district court
must provide a defendant with notice of its intent to impose a non-Guidelines sentence and an
opportunity to challenge the grounds for such a sentence. The Supreme Court recently held,
15 however, that any "expectation subject to due process protection ... that a criminal defendant
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20
would receive a sentence within the presumptively applicable guideline range did not survive .. .
United States v. Booker." Irizarry, 128 S. Ct. at 2202. Consequently, this requirement of
reasonable notice no longer applies to sentences at variance with the Guidelines' recommended
range. Nonetheless, "[s]ound practice dictates that judges in all cases should make sure that the
information provided to the parties in advance of the hearing, and in the hearing itself, has given

11
The district court denied Cavera's motion for a downward departure based on his wife's
health. We adopt the panel's decision to affirm the district court in this respect. See Cavera, 505
F.3d at 226.

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1
them an adequate opportunity to confront and debate the relevant issues." Id. at 2203. We
conclude that Judge Sifton followed this sound practice. He did so by informing the parties that

3
he was considering an above-Guidelines sentence because the crime involved trafficking guns to
New York City, by referring the parties to relevant articles on the subject, and by adjourning the
proceedings so that the parties could prepare submissions and make arguments on the question of

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6
whether local variation was justified.

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Whether or not the district court's decision in this case reflected a categorical policy
disagreement with the Guidelines,12 the Supreme Court's recent teachings strongly suggest that
such a disagreement does not suffice to render that decision either procedurally or substantively
unreasonable. It is now clear that, in appropriate circumstances, district courts may rely on
categorical factors to increase or decrease sentences. There is, in addition, no special reason to
think that reliance on a locality-based categorical factor is-without more-suspect. The
environment in which a crime was perpetrated may, in principle, inform a district court's
judgment as to the appropriate punishment in any number of ways. We agree with Judge Sifton
that, while a district court should not rely on "subjective considerations such as 'local mores' or
feelings about a particular type of crime," a finding "that the crime will have a greater or lesser
impact given the locality of its commission is appropriately considered in crafting a reasonable
sentence post-Booker." Lucania, 379 F. Supp. 2d at 296. As always, the more specifically in the
purposes of sentencing a district court's rationale is grounded, the more likely it is to survive

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12
As the district court noted, the Commission has never specifically addressed the issue of how
geography or demographics might be factored into an assessment of the severity of particular
crimes, though Congress invited it to do so. See Lucania, 379 F. Supp. 2d at 294 (citing S. Rep.
98-225 at 170).

appellate inspection. Cf. United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008) (affirming an
1

2 above-Guidelines sentence for a gun trafficking offense where the district court made a specific
3
finding that there was an "epidemic of handgun violence in communities within [the District of
Massachusetts]'").

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6

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12

Judge Sifton stated expressly that he did not base his decision on "local feelings" in New
York that gun trafficking is more serious. Lucania, 379 F. Supp. 2d at 294. The district court
can properly be read to have rested its decision that a sentence above the Guidelines range was
necessary to satisfy the § 3553(a)(2) factors on two independent grounds. The first ground was
the nonspecific geographical and demographic fact that New York City is a large metropolitan
area. In this respect, Judge Sifton observed that urban areas have higher homicide rates than
suburban and rural areas; that in those parts of New York City included in the Eastern District of
New York, population density sometimes exceeded 35,000 persons per square mile when the
national average was only 78 persons per square mile; and that guns smuggled into New York
City frequently end up in the hands of persons not legally authorized to possess them and are
used for illegitimate purposes. Id. at 295. From these circumstances, he concluded that firearm
trafficking into New York City, and specifically into those boroughs in the Eastern District of
New York, presented a greater risk of harm. The district court's second ground focused instead

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on New York's stricter gun regulatory scheme. More stringent local regulation in New York, the
district court found, "renders gun running a more serious problem and creates a larger [and more
profitable] black market" than in other places. Id. Accordingly, on the district court's view, "a
more severe penalty is necessary to produce adequate deterrence." Id.
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22
As to the district court's first ground, our Court is divided. Were it necessary to reach the
23
issue, some of us would hold that the district court, in its wide discretion, permissibly relied on a

determination that trafficking guns into an urban area is likely to create more harm than the

national average offense envisaged by the Guidelines. Others would hold that the district court
2

3
erred to the extent that it based the sentence on the notion that guns are more dangerous in
metropolitan areas. Still others are unsure whether reference to such broad, nonspecific
geographical and demographic factors is appropriate in the context of this case.

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7

We need not resolve that disagreement today, because the district court's second ground,
that of deterrence, provides an independently sufficient justification for its variation from the

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8
Guidelines.13 The court clearly concluded that the existence and enforcement of strict local gun
laws in a particular jurisdiction is likely to make the cost of getting a gun in that jurisdiction
higher than in a jurisdiction with lax anti-gun laws. This, the court indicated, will increase the
profits to be had from trafficking guns into the strong-enforcement jurisdiction. There is
considerable support for this opinion. See Philip J. Cook et al., Guns and Violence Symposium:

13
Similarly, we need express no opinion on the district court's consideration, in the course of its
§ 3553(a) analysis, of the fact that Cavera would have received a stiffer sentence had he been
convicted of the analogous New York State offense. Cf. 18 U.S.C. § 3661 ("No limitation shall
be placed on the information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence."); Williams, 524 F.3d at 215 (“The displacement of
the Sentencing Guidelines at the threshold, because of a 'personal policy' to conform the
sentence to one that would have been imposed in a proceeding in [state court], cannot be
reconciled with 18 U.S.C. § 3553(a), which provides that '[t]he court, in determining the
particular sentence to be imposed shall consider' the Sentencing Guidelines. 18 U.S.C. §
3553(a)(4).").

Regulating Gun Markets, 86 J. Crim. L. & Criminology 59, 72 (1995) ("In cities such as New
1

2
York and Boston, where the prevalence of gun ownership is low because legal transactions are

3
subject to onerous regulations or are banned, prices in the secondary market are higher than in
other east coast locales. .. . As a result, dealers have long been able to make a profit by buying
guns in Virginia or points south and running them northward to the street markets of northeastern
5

6
cities."); Gary Kleck, BATF Gun Trace Data and the Role of Organized Gun Trafficking in

7
Supplying Guns to Criminals, 18 St. Louis U. Pub. L. Rev. 23, 28-29 (1999) (explaining that in

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8
cities subject to "unusually strict gun laws . .. opportunities for gun traffickers to profit should
be at their maximum").14 Where the profits to be made from violating a law are higher, the
penalty needs to be correspondingly higher to achieve the same amount of deterrence. See
Richard A. Posner, Economic Analysis of the Law, § 7.2 (3d ed. 1986) ("A person commits a
crime because the expected benefits of the crime to him exceed the expected costs.").

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discretion for courts to rely on this form of reasoning in deciding on an appropriate sentence.

Like any economic theory, these points are not uncontroversial, but it is not an abuse of

14
There are at least two interrelated reasons why gun running may well be more profitable in
areas with stringent gun laws. One is that different prices in different places create an arbitrage
opportunity whereby criminals can buy guns at a lower price in state A and sell them at a higher
price in state B. The other is that stringent local gun regulations create a higher barrier to entry
in the gun market. In perfectly competitive markets, expected profits are generally low because
as profitability increases, new businesses enter the market and thus increase supply, driving
down prices and effectively reducing the profit. Where, however, local laws create a higher-
than-usual barrier to entry, there are fewer "businesses" willing to enter the illegal market and
thus more profit to be made by those willing to break the law.

Indeed, the statutory requirement that sentencing courts consider, on a case by case basis, what is
1

necessary for "deterrence to criminal conduct," 18 U.S.C. § 3553(a)(2)(B), almost inevitably
makes judges focus on notions and theories that may be controversial to some.15

3
4
Of course, Cavera was selling guns in Florida, not in New York. The evidence, however,
supported an inference that Cavera knew the guns he sold were destined for New York.
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6
Although he was not himself the exporter to New York, he was a knowing participant in the
traffic heading in that direction. As a result, there was no abuse of discretion in the court's
decision to consider New York market conditions in order to accomplish the goal of general
9 deterrence.

In the course of an unusually detailed explanation of his reasoning, Judge Sifton
discussed the relevant § 3553(a) considerations, and explained with particularity his basis for
disagreeing with the Guidelines recommendation in the specific context of Cavera's case. Judge
Sifton, moreover, reached an individualized judgment as to what the purposes of sentencing
required in this case. In view of Cavera's advanced age, the district court chose to reduce the
15 sentence it would otherwise have imposed based on its perception that Cavera was less likely

15
We do not mean to say that the use of academic theories is beyond the purview of appellate
court review. There are at any given time theories that are sufficiently clearly junk science so
that reliance on them makes a decision by the district court unreasonable, outside of "the range
of permissible decisions," Rigas, 490 F.3d at 238. In a different but not completely dissimilar
context, however, the Supreme Court has instructed that district courts should be the primary
gate-keepers of junk science subject always to review that is deferential. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997); Daubert v.
Merrell Dow Pharm., 509 U.S. 579 (1993).

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than the average offender to reoffend. In addition, Judge Sifton explicitly considered the need to
avoid unwarranted sentence disparities, and concluded that sentencing disparities among
different federal districts were warranted by, among other things, the greater need for deterrence
in New York, with its more profitable black market in firearms. Given the deference we owe to
district judges, especially after Gall and Kimbrough, this deterrence-based rationale easily

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6
suffices to justify the sentence. It follows that it would not be an abuse of discretion to impose a

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7
prison sentence of twenty-four months that exceeded the top end of the Guideline range by just
six months, and a fine that surpassed the Guidelines maximum by $30,000. In relation to both
the recommended Guidelines sentence and the §3553(a) factors, the sentence is substantively
reasonable.

What then of the broad demographic and geographic factors the district court considered?
It seems clear to us from the record that the district court would have imposed the same sentence
had it relied solely on the New York-specific rationale that the local gun regulatory scheme
created a heightened need for deterrence in this case. In these circumstances, we need not decide
15 whether the district court erred when it also relied, in the alternative, on the wider notions of
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geographic and demographic variation because, even if we were to identify error, it would be
harmless in the light of the alternative independent ground for the challenged sentence. Since
any such error would be harmless, the sentence imposed in this case withstands appellate review.

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III.

The panel decision is VACATED, and the judgment of the district court is AFFIRMED.

KATZMANN, Circuit Judge, with whom CABRANES, SACK, and HALL, Circuit Judges, join,
concurring:

I concur in Judge Calabresi's thoughtful and comprehensive assessment of the landscape
following the Supreme Court's decisions in Gall and Kimbrough. In particular, I agree that the
Supreme Court limited the Courts of Appeals' role in reviewing sentences, whether they vary
above or below the applicable Guidelines range, so long as a district court's rationale for a
sentence is discernible and reasonable. I also agree with Judge Calabresi that, despite Gall and
Kimbrough, we still have a role to play in "patrol[ling] the outer boundaries of reasonableness."
Fixing those boundaries is ultimately an exercise of judgment, one that cannot be reduced to a
simple formula or applied mechanically.

Undoubtedly, this and other Courts of Appeals will someday vacate sentences on the
ground that a district court's reasoning is so unpersuasive as to render it unreasonable. As I read
the Supreme Court's decisions, this is not such a case. I write separately to note simply that an
appellate court need not, in the end, find a district court's reasoning compelling in order to
affirm. Were we charged with adjudicating a policy debate, the dissenters might well prevail.
But I do not think that is a task the Supreme Court would have us undertake. Rather, I
understand the Supreme Court to mean we must defer to the district court's assessment so long as
it is "reasonable." Courts will have to determine in individual cases the line at which
reasonableness ends and arbitrariness begins, with the twin hobgoblins of widely variant
sentences and overbearing circuit-court review lurking in the shadows. Ultimately, however, in
light of the Supreme Court's directives, I do not think that this is a case in which the district court
has crossed that line.

Accordingly, I concur.

REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, and
Judge PARKER join, concurring:

Our court, sitting en banc, today identifies a set of fundamental principles regarding
the imposition and review of federal sentences after the Supreme Court's decisions in Gall
v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558
(2007). I join in the opinion of the court unanimously endorsing those principles. See ante
Parts I & II.A. I also join a majority of the court in holding that a 24-month sentence for
illegally trafficking 16 guns to New York City is reasonable in this case and, therefore,
affirming the judgment of the district court. See ante at Part II.B. I write separately simply
to clarify that my rationale for affirming is not limited to the majority's approval of the
district court's assessment of the need for adequate deterrence of gun trafficking into New
York City. See 18 U.S.C. § 3553(a)(2)(A). Consistent with the principles announced by the
court today, I conclude that the district court also acted well within its discretion in finding
that local circumstances rendered Cavera's gun trafficking more serious than the mine-run
case reflected in the Sentencing Guidelines' recommended 12-18 month prison range.' See

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1 In concluding that Cavera's gun smuggling was particularly serious because he knew
that the guns sold would be transported into New York City, particularly that part of the city
included in the Eastern District of New York, Judge Sifton made the following findings of
fact:

(a)
"Firearms smuggled into New York City commonly end up in the hands
of those who could not otherwise legally acquire them." United States
v. Lucania, 379 F. Supp. 2d 288, 295 (E.D.N.Y. 2005).

(b)
Such guns "are frequently used for illegitimate purposes." Id.

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id. Because the majority opinion does not address this part of the district court's analysis,
and because dissenting colleagues identify error therein, I here explain my reasons for
concluding otherwise.2

1\.
The Presumptions Proscribed and Review Standard Mandated by Gall and
Kimbrough

In reviewing the reasonableness of the challenged sentence, two rulings in Gall v.
United States, 128 S. Ct. 586, are particularly instructive. First, while a district court is
statutorily obliged to consider the Guidelines in imposing sentence, see 18 U.S.C.
§ 3553(a)(4), it commits constitutional error if it presumes the reasonableness of a Guidelines
sentence and fails to determine for itself the sentence warranted by the totality of factors
stated in 18 U.S.C. § 3553. See Gall v. United States, 128 S. Ct. at 596-97; ante at [11].
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15

Second, a reviewing court is constitutionally prohibited from applying "a presumption of
unreasonableness" to a non-Guidelines sentence. Id. at 597; ante at [13]. These twin rulings
caution that, whatever concerns reviewing courts may have about affording district courts

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3

(c)
Such use has "the potential to create a substantially greater degree of
harm when in an urban environment such as New York City than in the
United States generally." Id .; see also id. at 295 n.3 (citing statistical
evidence showing, inter alia, that New York City is "the most densely
populated urban area of the country," and that, "while the population
density of the United States on average is . . . about 78 people per
square mile," the "population density of parts of the Eastern District of
New York exceeds 35,000 per square mile").

2 To the extent dissenting colleagues also fault the district court's reliance on local
facts to support its deterrence assessment, I have nothing to add to the majority opinion's
explanation for why our court identifies no error in this respect.

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leeway to impose non-Guidelines sentences, particularly based on general rather than case-
specific concerns, we cannot, consistent with the Sixth Amendment, pronounce rules or
impose burdens that effectively place a "thumb on the scales" in favor of Guidelines
sentences. See Kimbrough v. United States, 128 S. Ct. at 577 (Scalia, J., concurring).

Specifically, we cannot demand "extraordinary' circumstances to justify a sentence
outside the Guidelines range." Gall v. United States, 128 S. Ct. at 595; ante at [13-14]. We
cannot use "the percentage of a departure [from the Guidelines] as the standard for
determining the strength of the justifications required for a specific sentence." Gall v. United
States, 128 S. Ct. at 595; see ante at [14]. We cannot prohibit non-Guidelines sentences
based on a sentencing judge's disagreement with Commission policy determinations. See
Kimbrough v. United States, 128 S. Ct. at 570; Rita v. United States, 127 S. Ct. 2456, 2465
(2007) (observing that district courts may consider arguments that "the Guidelines sentence
itself fails properly to reflect § 3553(a) considerations"); ante at [15]. Finally, although we
may (1) reasonably expect a "major departure [to] be supported by a more significant
justification than a minor one," Gall v. United States, 128 S. Ct. at 597, and (2) conduct

"closer review" of a justification "when the sentencing judge varies from the Guidelines
based solely on the judge's view that the Guidelines range fails properly to reflect § 3553(a)
considerations even in a mine-run case," Kimbrough v. United States, 128 S. Ct. at 575
(internal quotation marks omitted), the standard of review remains the same in every case.

As Gall makes clear, "the abuse-of-discretion standard of review applies to appellate review

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of all sentencing decisions - whether inside or outside the Guidelines range." 128 S. Ct. at

2
596 (emphasis added).3

2\.
The Procedural and Substantive Components of Reasonableness Review

Gall confirms that reasonableness review has both a procedural and substantive
component. At the procedural stage, Gall provides five examples of potential errors by a
sentencing court: (1) "failing to calculate (or improperly calculating) the Guidelines range,"4
(2) "treating the Guidelines as mandatory," (3) "failing to consider the § 3553(a) factors,"
(4) "selecting a sentence based on clearly erroneous facts," or (5) "failing to adequately
explain the chosen sentence -including an explanation for any deviation from the Guidelines
range." Id. at 597; ante at [12-13].

If "no significant procedural error" is identified, a reviewing court then "consider[s]
the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard," taking "into account the totality of the circumstances, including the extent of any
variance from the Guidelines range." Gall v. United States, 128 S. Ct. at 597; ante at [12, 14-
15]. Gall emphasizes that substantive review is narrow: "it is not for the Court of Appeals
to decide de novo whether the justification for a variance is sufficient or the sentence

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1
2

3 As the court observes, "reasonableness" appears to be a particularly deferential form
of abuse-of-discretion review. See ante [9 n.5].

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4

4 We reaffirm today that omission of a Guidelines calculation can be justified in
certain circumstances. See ante at [12] (citing United States v. Crosby, 397 F.3d 103, 112
(2d Cir. 2005)). Where such justification is not present, however, Gall makes clear that
failure to calculate the applicable Guidelines range is a procedural error.

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reasonable." 128 S. Ct. at 602. Rather, reviewing courts "must give due deference to the
district court's decision that the § 3553 (a) factors, on the whole, justify the extent of the
variance." Id. at 598; see id. 602 (same); ante at [14]. Thus, for a sentence to be
substantively unreasonable it must fall outside the "broad range" warranted by the totality of
the circumstances. United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008); ante at [15].

With these principles in mind, I proceed to consider the reasonableness challenge in
this case.

## 3. The Reasonableness Challenge at Issue

I do not understand any member of the en banc court to suggest that, absent procedural
error, a 24-month sentence for illegally trafficking in 16 guns would be substantively
unreasonable in this case. Thus, the singular focus of this appeal is procedural error,
specifically, the district court's justification for the challenged sentence and any fact finding
underlying that justification.5

At the outset, I suggest that if the district court had stated simply, and without
referencing any local circumstances, that upon careful consideration of the § 3553(a) factors,
including the applicable Guidelines range, it concluded that a 24-month sentence was
necessary (a) to reflect the seriousness of a crime that, after all, involves illegal trafficking
in instruments that can take a human life; and (b) to ensure the adequate deterrence of such

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5 The district court's proper calculation of the Sentencing Guidelines, recognition of
the Guidelines' advisory status, and careful consideration of § 3553(a) factors are not in
dispute.

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trafficking, we would not identify any procedural error in that justification. To demand
more justification (or factual support) for such a modest variance would effectively challenge
the district court's constitutionally mandated authority to weigh § 3553(a) factors for itself
and would come close to presuming the unreasonableness of a non-Guidelines sentence. See
Gall v. United States, 128 S. Ct. at 597.6

The district court did not, however, presume to justify its sentence by assessing the
seriousness of gun trafficking offenses generally. Rather, it more modestly considered the
seriousness of Cavera's crime by reference to the community for which the illegal guns were
intended: New York City.7 After United States v. Booker, 543 U.S. 220 (2005), a district
court's consideration of local circumstances in assessing § 3553(a) factors cannot, by itself,
manifest procedural error. This conclusion is compelled by our holding today that "we will
not categorically proscribe any factor 'concerning the background, character, and conduct'

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6 We hold today that it is "[a]t the substantive stage of reasonableness review" that an
appellate court "may consider whether a factor relied on by a sentencing court can bear the
weight assigned to it" by the district court. See ante at [14]. While this review is deferential,
it nevertheless follows that a factor or justification that could support a 24-month sentence
might not bear the weight of a 24-year sentence. Cf. United States v. Jones, 531 F.3d at 174
("[I]n determining substantive unreasonableness, a reviewing court will set aside only those
outlier sentences that reflect actual abuse of a district court's considerable sentencing
discretion."); United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006) ("The weight to be
afforded any argument made pursuant to one of the § 3553(a) factors is a matter firmly
committed to the discretion of the sentencing judge and is beyond our review, as long as the
sentence ultimately imposed is reasonable in light of all the circumstances presented."
(emphasis added)). No such substantive reasonableness concern arises in this case.

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7 In a post-arrest statement, Cavera admitted knowing that the guns he sold were
destined for New York City. See Presentence Report 1 15 (Feb. 2, 2005).

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of the defendant, with the exception of invidious factors." Ante at [14] (quoting 18 U.S.C.
§ 3661). Accordingly, the only possible procedural challenge in this case relates to the
factual basis for the district court's finding that gun smuggling to New York City has "the
potential to create a substantially greater degree of harm" than in the mine-run case. United

States v. Lucania, 379 F. Supp. 2d at 295. See post at [5] (Straub, J., dissenting) (concluding
that neither record "data" nor "reasonably available statistics" support conclusion that "New

York City's population density makes Cavera's offense more serious here than in the nation

generally"); post at [7] (Sotomayor, J., dissenting) (stating that "district court's analysis and
data are insufficient to support its conclusion that defendant-appellant deserved a severer
sentence because firearms trafficking (1) is a more serious crime in densely populated
areas .... ").

a.
Kimbrough "Closer Review" Does Not Apply in This Case

Before discussing why I identify no abuse of discretion in the district court's factual
assessment of the seriousness of Cavera's crime, I note my disagreement with the dissenters'
view that this case warrants "closer review" in light of Kimbrough v. United States, 128 S.
Ct. at 575. See post at [1-6] (Sotomayor, J., dissenting). Kimbrough referenced the
possibility of "closer review" in a context not present in this case, i.e., when the Commission
had relied on "empirical data and national experience" to frame a Guideline that addressed
the particular concern at issue. 128 S. Ct. at 575 (internal quotation marks omitted). These

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circumstances were not present in Kimbrough because, although the Commission had

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formulated specific Guidelines to treat crack cocaine more severely than powder cocaine or
heroin, it did so to mimic the drug ratios of statutes establishing mandatory minimum
sentences, and not to reflect relevant empirical data or national experience. Id. (explaining
why case "present[ed] no occasion for elaborative discussion" of closer review possibility).

This case is a step further removed from Kimbrough. Although the Commission has
promulgated Guidelines to address the unlawful receipt, possession, or transportation of
firearms, see U.S.S.G. § 2K2.1, it has never considered whether the risk of harm posed by
such crimes can vary depending on the intended destination for the guns. In short, not only
are there no Guidelines reflecting empirical and experiential study of this issue, there are no
Guidelines at all on the point.8

Some dissenting colleagues nevertheless urge "closer review" of the district court's

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8 The omission is noteworthy because, in the Sentencing Reform Act, Congress
recognized the possibility that regional circumstances might differentiate some crimes, and
it specifically invited the Sentencing Commission to consider "the community view of the
gravity of the offense" in formulating the Guidelines. 28 U.S.C. § 994(c)(4); see United
States v. Lucania, 379 F. Supp. 2d at 294 (citing Senate Report stating that relevant
community could be either national or local "to take account of considerations based on
pertinent regional differences"). While the application notes to certain Guidelines make
reference to state and local law, see, e.g., U.S.S.G. § 2k2.1(b)(2) & app. n.6 (providing for
consideration of "local law" among circumstances relevant to determining if defendant
possessed firearms "solely for lawful sporting purposes or collection," without "unlawful"
discharge or use); id. § 2H4.1(b)(4) & app. n.2 (defining "[a]ny other felony offense," with
reference to "federal, state, [and] local law"); id. § 2L1.2 & app. n.1 (defining various
increase-triggering offenses with reference to "federal, state, [and] local law"), the
Commission has never undertaken an inquiry into how local differences, such as population
density, might affect the risks of harm from illegal gun trafficking. Its traditionally
formulated Guidelines reflect only national sentencing averages. See United States v.
Lucania, 379 F. Supp. 2d at 294.

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consideration of local circumstances by construing Commission silence as the equivalent of
a policy determination that local circumstances are not properly factored into a sentencing
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decision. See post at [2-3] (Sotomayor, J., dissenting). I disagree. Certainly, that was not
how we interpreted Commission silence when the Guidelines were mandatory, and we hardly
have a basis for according greater weight to Commission silence after Booker. Title 18
U.S.C. § 3553(b)(1), which before Booker mandated Guidelines sentences unless the district
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court identified a factor "not adequately taken into consideration by the Sentencing

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Commission," expressly stated that, "[i]n determining whether a circumstance was
adequately taken into consideration, the court shall consider only the sentencing guidelines,
policy statements, and official commentary of the Sentencing Commission" (emphasis
added). We had construed this language to mean that "Congress did not limit what a court
may determine under § 3553(b) to have been inadequately considered by the Commission.
Rather, this provision was left open to 'provide[] the flexibility necessary to assure adequate
consideration of circumstances that might justify a sentence outside the guidelines."" United
States v. Lara, 905 F.2d 599, 605 (2d Cir. 1990) (quoting S. Rep. No. 98-225, at 78 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3262). The expectation was that, as district courts
identified factors not considered (or inadequately considered) by the Commission and
assigned them weight in imposing individual sentences, the Commission would collect this
data and study it to determine the need for new or revised Guidelines.

Thus, long before Booker, the heightened risk of harm from gun trafficking into the

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nation's most densely populated city had been cited as a factor not considered by the
Commission that might support a departure from Guidelines ranges. See Reena Raggi, Local
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Concerns, Local Insights, 5 Fed. Sent'g Rep. 306 (1993);9 see also Vincent L. Broderick,

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Local Factors in Sentencing, 5 Fed. Sent'g Rep. 314 (1993) (asserting that Sentencing

Commission's silence on local conditions renders them a permissible ground for departure

under 18 U.S.C. § 3553(b) as a fact not "adequately taken into consideration" in formulating
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the Guidelines); Charles P. Sifton, Theme and Variation: The Relationship Between National
Sentencing Standards and Local Conditions, 5 Fed. Sent'g Rep. 303 (1993) (same). If the
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Commission had thought such a departure was unwarranted, it could have said so in a
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Guideline or policy statement (just as it has identified family circumstances, education, age,
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9 As support for the conclusion that the district court's analysis in this case was "at
odds with the Sentencing Commission," post at [2] (Sotomayor, J., dissenting), Judge
Sotomayor quotes the following language from my 1993 article: "When I voiced my concern
to the Sentencing Commission about these guidelines for gun trafficking as they applied in
New York, I was told that other parts of the country viewed gun crimes differently and that
the guidelines were meant to reflect an average." Raggi, Local Concerns, Local Insights, 5
Fed. Sent'g Rep. at 306. Let me clarify that what is referenced is a telephone exchange
between myself and one of the Commission staffers charged in the early years of the
Guidelines with answering district judges' questions and hearing their concerns. Such an
exchange hardly reflects the pronouncement of a formal Commission policy precluding
consideration of local demographics in assessing potential harm from gun trafficking, much
less a policy based on the sort of empirical or historical survey that Kimbrough suggested
might prompt closer review of a non-Guidelines sentence. The adoption of such a policy
would require formal procedures. See Mistretta v. United States, 488 U.S. 361, 394 (1989)
(noting that the Commission's "rulemaking is subject to the notice and comment
requirements of the Administrative Procedure Act" (citing 28 U.S.C. § 994(p)); see also 28
U.S.C. § 994(p) (requiring Commission to submit amended Guidelines to Congress for
review).
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etc., as circumstances not generally supporting departures, see U.S.S.G. §§ 5H1.1, 5H1.6).
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Indeed, even now, the Commission might take such action, and any resulting Guideline or
policy statement would have to be considered by sentencing courts pursuant to § 3553(a)(4).

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But until that time, there is no legal support for us to conclude that Commission silence
signals an intent to preclude judicial consideration of particular facts, and certainly no factual
support to conclude that such silence is informed by the sort of empirical and experiential
study that Kimbrough referenced as a basis for "closer review" of a non-Guidelines sentence.

b.
The District Court's Factual Findings Do Not Manifest Clear Error

While I do not think this case calls for "closer review," whether it does or not, one
thing is clear: closer review does not equate to de novo review of a sentencing court's factual
findings. Such findings are reviewed only for clear error. See Gall v. United States, 128 S.
Ct. at 600 (identifying error in appellate analysis that "closely resembled de novo review of
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the facts"); United States v. Jones, 531 F.3d at 173 (holding that "references to 'closer
review' and 'significant justification"" do not "establish a higher standard of review than
abuse of discretion" or permit review of district court's fact finding "for anything other than
clear error"); cf. Maine v. Taylor, 477 U.S. 131, 144-45 (1986) (observing that, even where
proffered justification for discrimination is subject to strict scrutiny, "the empirical
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component of that scrutiny, like any other form of factfinding, is the basic responsibility of
district courts" and "shall not be set aside unless clearly erroneous" (internal quotation marks

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omitted)).10 To identify clear error, we must do more than entertain doubts about the district
court's conclusions or hypothesize reasonable alternative findings; we must be "left with the
definite and firm conviction that a mistake has been committed." Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985) (defining clear error) (internal quotation
marks omitted); accord Maine v. Taylor, 477 U.S. at 145 (applying clear error review to
district court's factual findings in criminal case). The district court's finding that gun
trafficking presents a greater risk of harm in New York City than in the mine-run case does
not manifest such clear error.

The district court supported its finding by reference to three facts. The first two, that
guns smuggled into New York City are (1) commonly acquired illegally and (2) then used
for unlawful purposes, see United States v. Lucania, 379 F.3d at 295, required no empirical
support. We would only have to look through our own docket history to take judicial notice
of the fact that the Eastern District of New York is home to the city's five traditional
organized crime families, numerous large-scale narcotics enterprises, and street gangs of all
stripes - for all of whom guns are tools of the trade and gun violence a routine form of

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10 The dissenters' proposed "closer review" standard would require us to "test a
district court's application of broad policy factors in order to ensure that the district court's
conclusions can be objectively supported and are not based on faulty assumptions." See post
at [5] (Sotomayor, J., dissenting). I cannot endorse this formulation of "closer review,"
which invites us to engage in precisely the kind of quasi-de novo review of which Gall
expressly disapproved. 128 S. Ct. at 600. That said, as the following discussion indicates,
if the dissenters' standard were to be applied to the district court's sentence here, it would
clearly be satisfied.

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harm.11

The third fact cited by the district court is New York City's status as the most densely
populated area of the country. Undisputed evidence shows that the average population
density of the United States is 78 people per square mile, whereas the population density in
parts of New York City included in the Eastern District of New York is 35,000 per square
mile. See United States v. Lucania, 379 F. Supp. 2d at 295 n.3. That yields a ratio of
approximately 1:450. To be sure, if a gunman, in any part of the country, shoots an intended
victim and hits his target, the results are equally tragic. But if the gunman misses his target,
the cited statistics plainly support an inference that the risk of injury, if not death, to a nearby
person is many times greater in the Eastern District of New York than in most parts of the
country. Similarly, if one imagines an inebriated person firing a gun into the air at random,
the likelihood that it will hit someone is also far, far greater in the Eastern District of New
York than in most other areas of the country. This is not to suggest that every time a gun is
fired on a New York City street, at least 450 people are within range, but it shows that the
number of people likely to be in range in New York is always so much higher than in many
other areas of the country as to support the district court's finding of an increased risk of

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11 As this discussion indicates, I do not agree that "the impact of almost any crime will
vary according to its location." Post at [4] (Sotomayor, J., dissenting). But I do think that
after Booker, Kimbrough, and Gall, if a district court reasonably concludes that the location
in which a particular crime was committed is relevant to a § 3553(a) factor, its consideration
of that local fact manifests no procedural error. See generally United States v. Politano, 522

To the extent the district court's conclusion that trafficking guns to a densely
populated city poses a heightened risk of harm is plainly grounded in common sense, our
dissenting colleagues are dismissive. See post at [12-13] (Straub, J., dissenting) (observing
that "reflexive evocation of common sense does not resolve the issue because of the
countervailing evidence"); post at [6] (Sotomayor, J., dissenting) (noting “serious
danger . . . that sentencing judges will dress their subjective views in objective trappings,
either by using questionable empirical data or by invoking a 'common sense' at odds with
reality"). In response, I begin with a word about the role of "common sense" in judicial
proceedings.

When the issue in dispute is legal - the bulk of our appellate work - rulings must
plainly be grounded in law, and not ascribed simply to common sense. But, when the issue
to be resolved is factual, the law expects the factfinder - whether judge or jury - to draw on
common sense and experience in making any determination. See 1 Leonard B. Sand et al.,
Modern Federal Jury Instructions 1 5.02, Instr. 5-4 (2005) (noting that jury should be
instructed: "You should consider the evidence in light of your own common sense and
experience, and you may draw reasonable inferences from the evidence"). Indeed, common
sense and experience frequently provide the necessary link between a given fact (such as the

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F.3d 69, 74 (1st Cir.), cert. denied 129 S. Ct. 133 (2008) ("Post-Booker, it is now apparent
that the district court has the discretion to take into account all of the circumstances under
which Politano committed the offense, including the particular community in which the
offense arose.").

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classic example of a person entering a building wearing a wet raincoat) and a permissible
inference (that it is raining outside). Because appellate courts are not factfinders, when we
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review a challenged factual inference we do not ourselves weigh competing evidence. We
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ask only whether any reasonable factfinder, applying common sense and experience to the

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task, could have drawn the challenged inference from the record facts according to the

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applicable burden of proof, which at sentencing is a preponderance of the evidence. See
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United States v. Yannotti, 541 F.3d 112, 129 (2d Cir. 2008) (noting that the preponderance
standard applies at sentence); United States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005)
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(same); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2513 (2007)
(observing that preponderance burden requires demonstration that fact at issue "is more likely
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than not" true). As long as the answer is yes, we defer to that finding.

12
In Gall, the Supreme Court emphasized the deference reviewing courts owe district
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courts' factual findings. In part, this is because district courts have the advantage of seeing
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the parties and the evidence in the particular case and assessing credibility. See Gall v.
United States, 128 S. Ct. at 597-98. But this is not the only reason. Such deference also

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reflects an acknowledgment of the general insights and judgment that district courts develop
\- a sort of judicial common sense - simply by virtue of imposing scores of sentences each
year. See id. at 598 & n.7 (noting that “[d]istrict judges sentence, on average, 117 defendants

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every year"); accord United States v. Jones, 531 F.3d at 163 & n.4. Although our dissenting
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colleagues are dismissive of "talismanic incantations to local 'experience," post at [5]

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(Sotomayor, J., dissenting), the Supreme Court has signaled otherwise, recognizing both
before and after Booker that just sentences often depend on insights drawn from the district
court's "day-to-day experience in criminal sentencing," Koon v. United States, 518 U.S. 81,
98 (1996), that are not always "conveyed by the record," Gall v. United States, 128 S. Ct.
at 597 (quoting amicus brief filed by Federal Public and Community Defenders and the
National Association of Federal Defenders). While such insights may not be "quantifiable,"
United States v. Jones, 531 F.3d at 171 n.4, Gall makes clear that they are an important
reason why, in reviewing non-Guidelines sentences, appellate courts must "give due
deference to the district court's decision that the § 3553(a) factors, on the whole, justify the
extent of the variance," 128 S. Ct. at 597.12

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Our dissenting colleagues nevertheless insist - as a procedural matter - that more than

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12 The dissenters acknowledge district courts' "day-to-day experience in criminal
sentencing," but contend that such experience does not enable district courts to "draw
comparisons between defendants in different courts around the country" because a particular
district court "judge's experiences are limited to his or her region." Post at [4] (Sotomayor,
J., dissenting). In fact, when a district court concludes, as it did in this case, that "local
circumstances" affect the "seriousness of the offense" and the need "to afford adequate
deterrence," United States v. Lucania, 379 F. Supp. 2d at 290, 293, the court is not making
point-to-point "comparisons between defendants in different courts around the country."
Post at [4] (Sotomayor, J., dissenting). Rather, it is determining, as required under § 3553(a),
whether, in light of those local circumstances and all other relevant considerations, the
national averages reflected in the advisory Guidelines point toward a sentence that is
"sufficient, but not greater than necessary" to effectuate the goals outlined in the sentencing
statute. See United States v. Lucania, 379 F. Supp. 2d at 296 (concluding that "national
'average" expressed in Guidelines did not reflect "increased risk of death or injury" from
trafficking firearms into nation's most densely populated city). First-hand knowledge of
conditions in other districts is not necessary to that determination.

common sense and experience was necessary to permit the district court to infer a heightened

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risk of harm from evidence of population density. Even before Booker, however, reviewing
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courts did not demand objective evidence to support Guidelines departures for extraordinary

family circumstances, age, or other conditions that Commission policy statements noted were
generally disfavored. See U.S.S.G. §§ 5H1.1, 5H1.6. To depart on such grounds, the

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district court had to find that the "discouraged factor . . . [was] present to an exceptional
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degree or in some other way ma[de] the case different from the ordinary case where the
factor is present." Koon v. United States, 518 U.S. at 96; see also U.S.S.G. § 5K2.0; United
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States v. Huerta, 371 F.3d 88, 93-94 (2d Cir. 2004). Conducting such an inquiry, however,
did not require the district court to cite evidence demonstrating that the defendant's particular
circumstances were "exceptional" as a matter of empirical fact. Rather, district courts were
asked to "make a refined assessment of the many facts bearing on the outcome, informed by
[their] vantage point and day-to-day experience in criminal sentencing." Koon v. United
States, 518 U.S. at 98 (emphasis added). In light of this precedent, to condition non-
Guidelines sentences on the production of empirical evidence would, in effect, accord a
presumption of unreasonableness to such sentences, in violation of the Sixth Amendment.
See Gall v. United States, 128 S. Ct. at 597; Rita v. United States, 127 S. Ct. at 2466-67.

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Our dissenting colleagues submit that they have, in fact, identified empirical evidence
that demonstrates clear error in the district court's finding that high population density
presents a greater risk of harm from gunfire to bystanders. For example, they cite news

stories reporting reductions in the number of innocent victims killed in New York City in
recent years. See post at [8] (Straub, J., dissenting); post at [9] (Sotomayor, J., dissenting).

Plainly, homicide is not the only form of injury that can be caused by gunfire.13 Indeed, the
reported decline in homicides is small comfort to the significant number of New Yorkers,
many of them children, who are regularly injured by random gunfire.14 In any

13 We understand the district court's reference to homicide statistics to have been only
illustrative, because illegal guns can certainly pose serious risks of harm short of death. Cf.
Centers for Disease Control, "Surveillance for Fatal and Nonfatal Firearm-Related
Injuries-United States 1992-1998"(2001), available at http://www.cdc.gov/mmwr/preview/
mmwrhtml/ss5002a1.htm (noting that, while death rate for firearm-related injuries is
"substantially higher than [that for] all causes of injury combined," only 30% of firearm-
related injuries resulted in death between 1993 and 1998).

14 A brief review of news stories for the last eighteen months reveals the following:

"NYPD Daily Blotter," N.Y. Post, Nov. 6, 2008, at 18 (reporting three persons hit by
random gunfire outside subway station).

"Shot Girl Was Hit in Crossfire," N.Y. Post, Oct. 22, 2008, at 21 (reporting 5-year-old
girl who suffered collapsed lung after being shot in gang fight crossfire).

"71-Year-Old Woman Hit by Stray Bullet in Brooklyn," WCBS, Oct. 1, 2008,
http://wcbstv.com/topstories/stray.bullet.shooting.2.830513.html (reporting woman
grazed by bullet while walking home from church).

"Kids, 8 and 10, Injured by Stray Bullets in Brooklyn and Queens," N.Y. Daily News,
Sept. 14, 2008, at 17 (reporting 10-year-old girl shot in shoulder when bullets raked
Brooklyn block party and 8-year-old boy shot on side of forehead when getting into
a car with his mother in Queens).

"After a Boy's Shooting, 'Why' Is on Everyone's Lips," N.Y. Times, Aug. 6, 2008,
at B2 (reporting critical shooting of 9-year old caught in crossfire in Crown Heights,
Brooklyn).

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"15 Year-Old Is Fatally Shot in Harlem," N.Y. Times. June 30, 2008, at B3 (reporting

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event, a reduction in homicides would not be enough to identify clear error in the district

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court's assessment of the risk presented by random gunfire in a densely populated

death of boy killed by stray bullet on 127th Street, near site where, two weeks earlier,
12-year-old boy had been injured by debris loosened by stray bullets).

"An Innocent Errand Ends in Death for a Brooklyn Mother of Three," N.Y. Times,
Apr. 1, 2008, at B1 (reporting death of woman hit by random gunfire in courtyard).

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"Girl, 9, Hit by Stray Bullet that Flies into Her Brooklyn Apt.," Newsday, Mar. 28,
2008 (reporting on 9-year-old girl hit in arm by bullet that crashed through window
of her fifth floor apartment).

"45 to Life in Slay," N.Y. Post, Jan 4, 2008, at 11 (reporting on sentencing of Queens
man who killed innocent bystander while attempting to shoot person who shot
assailant's brother).

"Girl, 11, in Shoot Horror," N.Y. Post, Jan. 2, 2008, at 9 (reporting death of child
when family stumbled into Bronx shootout on New Year's Eve).

"Caught in Crossfire," N.Y. Daily News, Oct. 15, 2007, at 8 (reporting on various
shooting incidents:

(1)
16-year-old boy shot in head by stray bullet when looking out window
of Brooklyn apartment.

(2)
3-year-old girl grazed by bullet while visiting grandmother in Brooklyn.

(3)
12-year old shot in back by stray bullet when fight between rival gangs
spilled onto Bronx street.

(4)
4-year-old girl shot in leg by stray bullet while jumping rope.

(5)
12-year-old Brooklyn girl shot in side when gunfire erupted on
neighborhood street.

"Slain Girl's Parents' Fury at 'Terror' Gang," N.Y. Post, July 3, 2007, at 4 (reporting
on killing of 10-year-old girl caught in crossfire of Bronx gang shootout).

District judges in New York City know that these recent experiences are not unique. See
Raggi, Local Concerns, Local Insights, 5 Fed. Sent'g Rep. at 306 (referencing press reports
of sixteen children who were victims of random gunfire in ten-week period in 1990).

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community. A reduction in random killings can, after all, be attributable to any number of
factors, including an increased police commitment to getting illegal guns off the street, see
2

Sworn Complaint 1 46, City of New York v. A-1 Jewelry & Pawn, Inc., No. 06 Civ. 2233

(E.D.N.Y. May 15, 2006) (alleging that 70,000 handguns were seized by the New York City

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Police Department from 1995-2005 "[v]irtually all ... from individuals who were prohibited
by law from possessing guns"); see also "Police Data Shows Increase in Street Stops," N.Y.
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Times, May 6, 2008, at B1 (reporting 145,098 street stops by police in first three months of
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2008 as part of strategy to stop crime and find illegal guns), or extraordinary community
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precautions that tragically confirm the danger to innocent bystanders posed by urban gun
violence, see "After a Boy's Shooting, 'Why?' Is on Everyone's Lips," N.Y. Times, Aug. 6,
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2008, at B2 (reporting that residents of community "had learned to take careful steps to avoid
getting caught in the middle of someone else's battle. They stayed indoors. They taught their
children to hit the ground when a shot was heard."). Such measures, even when successful

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in reducing the number of times a gun is fired on New York City streets, do not alter the fact
that, whenever a gun is fired, the population density of the community enhances the risk of
injury beyond that of a mine-run case. 15

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15 Insofar as the dissenters note that other, less densely populated communities report
problems with random gunfire, post at [10 n.6] (Sotomayor, J., dissenting), sentencing courts
in those locales will have to decide for themselves how those problems factor into the totality
of circumstances relevant to § 3553(a) analysis. See United States v. Politano, 522 F.3d at
72 (affirming sentence imposed in District of Massachusetts where district court found, under
§ 3552(a), that "any reader of the daily newspapers is aware that the illegal trafficking of
firearms at the street level is a significant contributing factor in what, without exaggeration

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Nor is a different conclusion about the seriousness of Cavera's crime compelled by
the supposed flaw that the dissenters purport to identify in the district court's reliance on a
Justice Department study as evidence that "homicide rates in large urban areas remain
substantially higher than in suburban and rural areas." United States v. Lucania, 379 F.
Supp. 2d at 295 (citing U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice
Statistics, Homicide Trends in the U.S., Trends by City Size (hereafter Trends by City Size),
http://www.ojp.usdoj.gov/bjs/homicide/city.htm (last visited Nov. 24, 2008)). Our

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colleagues note that the cited study discusses only absolute numbers of homicides rather than
relative rates of homicides. They point to a table included in the same study showing that,
when the number of homicides per 100,000 inhabitants is considered, cities with populations
between 250,000 and one million have recently had higher homicide rates than cities (such
as New York) with one million or more residents. See post at [6] (Straub, J., dissenting)

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(citing Trends by City Size: Homicide Victimization Rates per 100,000 Population for Cities
over 100,000 by Population Group, http://www.ojp.usdoj.gov/bjs/homicides/tables/

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vcitytab.htm (last visited Nov. 24, 2008)); see post at [7-8] (Sotomayor, J., dissenting).

This critique does not, in fact, undermine the district court's finding. The referenced

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I think, can be called an epidemic of handgun violence in communities within this district").
The fact that, after Booker, Kimbrough, and Gall, judges sitting in other districts might
reasonably conclude that the seriousness of gun smuggling into their communities is not
adequately addressed by the Sentencing Guidelines does not make it procedurally
unreasonable for the district court to have reached that conclusion in this case, which
involves the nation's most densely populated city.

table shows that the rates of homicides for larger cities, whether their populations are
250,000 to 499,000; 500,000 to 999,000; or over one million, are always significantly higher
than for small cities with populations of between 100,000 and 250,000. Indeed, over the 30-
year period covered by the Department of Justice's statistics, on average, larger cities had
homicide rates nearly 70% higher than that of small cities (i.e., 20.2 homicides per 100,000
versus 11.9), and cities over one million had rates nearly double that of small cities (i.e., 23.3
homicides per 100,000 versus 11.9). Over the last five years covered by the report (2001-

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2005), on average, the rate in larger cities has been approximately 52% higher than that in
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small cities (i.e., 14.6 versus 9.6), and approximately 45% higher in cities over one million
(i.e., 14.0 versus 9.6). On this record, the district court was not obliged to explore the
reasons why cities with populations between 250,000 and 500,000 sometimes show slightly
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higher homicide rates than cities with populations over one million. As already noted, to the
extent the explanation for this phenomenon, as far as New York City is concerned, might rest
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with a decade-long commitment of increased police resources to removing illegal guns from
the street, that initiative would not alter the fact that unseized guns continue to pose a greater
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risk of harm if discharged on the streets of a densely populated city. Thus, the district court
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did not misstate the import of recent homicide statistics, nor do those statistics demonstrate
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any clear error in its ultimate finding that trafficking guns into New York City is more
serious than the mine-run case.

In any event, I do not understand it to be our role, at the procedural step of

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reasonableness review, to engage in this kind of dissection of the empirical evidence cited
by the district court.16 Nor is it to identify competing studies or news articles pointing in
other directions. As the majority opinion observes, such evidence is inevitably debatable.
See ante [25] (holding that district court did not abuse its discretion in relying on potentially
controversial economic theories to support findings relevant to need for deterrence). The
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question, at the procedural step of reasonableness review, is not whether we are persuaded
to draw particular inferences from the evidence, but, rather, whether the district court
committed clear error by doing so.

I identify no clear error in the district court's finding that gun trafficking to New York
City is a sufficiently more serious crime than the mine-run case based on the high population
density of the city as well as the likely illegal disposition and use of such guns. For that
reason, as well as the heightened need for deterrence discussed in the majority opinion, I vote
to uphold the challenged 24-month sentence and to affirm the judgment of conviction.

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16 Likewise, we do not expect district courts to take on the additional burden of acting
as social scientists who must parse all available empirical evidence before reaching a
conclusion.

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STRAUB, Circuit Judge, concurring in Parts I and II.A., and dissenting in part. Judge
Cardamone and Judge Sotomayor join in full and Judge Pooler joins in Part 3.

I join fully in my colleague's concurring and dissenting opinion. I write separately to
emphasize what I believe reasonableness review entails in this case, and to explain why I believe
Gerard Cavera's above-Guidelines sentence for conspiring to deal in and transport firearms, 18
U.S.C. §§ 371, 922(a)(1)(A) and (5), fails basic reasonableness review.

While it is now clear that the District Court "may vary from Guidelines ranges based
solely on policy considerations, including disagreements with the Guidelines," Kimbrough v.
United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks and brackets omitted), it is
still the case that the justification for a particular sentence must follow from the facts and
premises, and those premises must be, if not ineluctable, at least sound or reasonable, see Gall v.
United States, 128 S. Ct. 586, 597 (2007). The District Court's conclusions here, however, that
firearms smuggled into New York City pose a greater risk of harm than in the United States
generally, and that "a more severe penalty is necessary to produce adequate deterrence," do not
follow from the facts. United States v. Lucania, 379 F. Supp. 2d 288, 293-96 (E.D.N.Y. 2005). I
appreciate the District Court's thoughtful and clearly stated consideration of the particular
significance of Cavera's crime in New York City. However, viewed in light of the Supreme
Court's recent guidance in Kimbrough, 128 S. Ct. 558, and Gall, 128 S. Ct. 586, the District
Court's decision to enhance Cavera's sentence, as it stands, exceeded its allowable discretion. I
would therefore remand this case for resentencing in light of those decisions.

## 1. Standard of Review

We review a district court's sentence for procedural and substantive reasonableness, a
standard "akin to review for abuse of discretion." United States v. Fernandez, 443 F.3d 19, 27

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(2d Cir.), cert. denied, 127 S. Ct. 192 (2006); see also Gall, 128 S. Ct. at 597. Pursuant to this
standard, we review a district court's interpretation of the Sentencing Guidelines de novo and
apply the clear error standard when evaluating a district court's findings of fact. See United
States v. Richardson, 521 F.3d 149, 156 (2d Cir. 2008).

In Kimbrough, the Supreme Court explained that sentencing "courts may vary from
Guidelines ranges based solely on policy considerations, including disagreements with the
Guidelines." 128 S. Ct. at 570 (internal quotation marks and brackets omitted).1 However,
district judges do not "have a blank check to impose whatever sentences suit their fancy." United
States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008); see also United States v. Higdon, 531 F.3d
561, 562 (7th Cir. 2008) (Posner, J.) (explaining that while an individual district court judge may
now be free to impose "his own penal philosophy[,] ... [a]s a matter of prudence, however, in
recognition of the Commission's knowledge, experience, and staff resources, an individual judge
should think long and hard before substituting his personal penal philosophy for that of the

" The government cites United States v. Politano, 522 F.3d 69 (1st Cir.), cert. denied,
129 S. Ct. 133 (2008), to argue that a district court is permitted to consider community-specific
characteristics. As explained herein, I do not disagree as a general matter. However, I do not
find this case to be particularly instructive or persuasive. In Politano, the District Court cited
unidentified newspaper reports to establish that a firearms trafficking offense is serious and
harmful within the specific community where Politano committed his crime. Id. at 72. The
District Court then did not probe or explain whether the impact of the offense was more serious
in its district than on average in the country. Id. The First Circuit assumed that the District
Court had made a determination that the impact of the offense was more serious in the particular
community where it was committed and failed to assess to any extent whether the relied-upon
reports demonstrate what the District Court claimed. Id. at 74. In addition, the First Circuit
failed to address what "closer review" may entail. See Kimbrough, 128 S. Ct. at 575.

This cannot be what the Supreme Court meant when it instructed appellate courts to
"ensure that the district court committed no significant procedural error." Gall, 128 S. Ct. at 597.
Nor can it be what the Court meant when it instructed appellate courts to determine whether a
district judge's view that a particular characteristic of the defendant or his crime was an
aggravating or mitigating factor was reasonable. See id. at 601.

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Commission"). Indeed, the Supreme Court has explained that "closer review may be in order
when the sentencing judge varies from the Guidelines based solely on the judge's view that the
Guidelines range fails properly to reflect [18 U.S.C.] § 3553(a) considerations even in a mine-run
case." Kimbrough, 128 S. Ct. at 575 (internal quotation marks omitted). And even where closer
review does not apply, we have emphasized that a sentencing court must "give fair consideration
6 to the Guidelines before imposing sentence [and] it must make 'an individualized assessment' of
the sentence warranted by § 3553(a) 'based on the facts presented." Jones, 531 F.3d at 170
(quoting Gall, 128 S. Ct. at 597) (citations omitted). And we will reverse a district court's
factual conclusion as clearly erroneous if it is "without foundation." United States v. Taylor, 475
F.3d 65, 70 (2d Cir. 2007) (per curiam) (internal quotation marks omitted).

The precise question presented by this case is whether the District Court exceeded its
allowable discretion when it chose to rely on empirical sociological data to draw conclusions,
decided that the Guidelines do not account for the judge's sociological conclusions, and then
based its sentence on those conclusions. In these circumstances, I believe we must examine
whether the District Court's findings are supported by the data cited in order to determine that it
has a "reasoned basis for exercising [its] own legal decisionmaking authority." Rita v. United
States, 127 S. Ct. 2456, 2468 (2007); see also Gall, 128 S. Ct. at 602 (deference is owed to

sentencing court's "reasoned and reasonable decision"); United States v. Anati, 457 F.3d 233,

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238 (2d Cir. 2006) (explaining, in dicta, that to the extent a judge decides "the special impact of
[an] offense in a particular geographic community" is "a relevant circumstance," "there might
have to be some empirical basis for deeming the impact of [that] offense in a particular
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community more serious than the assessment made by the Sentencing Commission"), overruled

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in part on other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201-02 & n.1 (2008).2
This, it seems to me, is what "reasonableness" review requires. It is not a question of whether

the justification given is "sufficient," cf. Gall, 128 S. Ct. at 594, but of whether the justification
follows from the facts and premises, and whether those premises are at least sound or reasonable.
If the justification does not follow from the facts and permissible inferences, then the conclusions
drawn are clearly erroneous.

The Supreme Court's analysis of the sentencing judge's use of age in Gall is instructive.
In that case, the Eighth Circuit found that "the district court gave significant weight to an
improper factor when it" likened Gall's sale of ecstasy at age twenty-one to the "impetuous and
ill-considered actions" of persons under the age of eighteen reflected in "general studies."
United States v. Gall, 446 F.3d 884, 890 (8th Cir. 2006), rev'd, 128 S. Ct. 586 (2007). The Court
agreed with the Eighth Circuit that the studies on age and behavior "cited by the District Judge
do not explain how Gall's specific behavior in the instant case was impetuous or ill-considered."
Gall, 128 S. Ct. at 601 (internal quotation marks omitted). The Court, however, explained that
the District Judge was not using the studies for that purpose, but instead was using the studies to
address the defendant's character. Id. The Court then reasoned that "[g]iven the dramatic
contrast between Gall's behavior before he joined the conspiracy and his conduct after
withdrawing, it was not unreasonable for the District Judge to view Gall's immaturity at the time
of the offense as a mitigating factor, and his later behavior as a sign that he had matured and

would not engage in such impetuous and ill-considered conduct in the future." Id. As the

2 The District Court itself explained that a judge should be permitted to take into account
differences in local concerns in sentencing only if the differences are "a) founded in fact; and b)
justified by reasons of general applicability." Lucania, 379 F. Supp. 2d at 294 (emphasis added).

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Court's analysis makes clear, while age is not an impermissible factor, a sentencing court's
conclusions about the significance of a defendant's age must be reasonable. In Gall, the
sentencing judge's conclusions about the defendant's character were reasonable because they
followed from the evidence about the defendant's conduct as he grew older.

Where a district court's sociological and statistical findings, as to which it enjoys no
special comparative advantage vis-à-vis the Sentencing Commission, see Kimbrough, 128 S. Ct.
at 574,3 do not reasonably follow from the evidence it cites, the court exceeds its allowable
discretion and the sentence is unreasonable. In this case, in particular, two features of the District
Court's analysis were unsound. I would thus find that the sentence is unreasonable and remand it
to the District Court.

## 2. The District Court's Use of Population Density

The District Court first erred in concluding that New York City's population density
makes Cavera's offense more serious here than in the nation generally. While it is possible that
this is the case, as my dissenting colleague also explains, neither the data relied on by the District
Court nor reasonably available statistics support that conclusion.

The District Court cited evidence showing that New York City is the most densely
populated city in the country and evidence it claimed showed that "homicide rates in large urban
areas remain substantially higher than in suburban and rural areas." Lucania, 379 F. Supp. 2d at
295 & n.3 (citing National League of Cities, 30 Most Densely Populated Cities,
http://www.nlc.org/about_cities/cities_101/187.aspx (last visited Nov. 20, 2008); U.S. Dep't of

3 Perhaps it also bears noting that generalist judges may not be the best equipped for this
type of sociological and statistical analysis. See Michael C. Dorf, Foreword: The Limits of
Socratic Deliberation, 112 HARV. L. REV. 4, 53 n.278 (1998).

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Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide Trends in the U.S.,

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Trends by City Size (hereinafter Trends by City Size),

http://www.ojp.usdoj.gov/bjs/homicide/city.htm (last visited Nov. 20, 2008)). It then reasoned

that an above-Guidelines sentence would not cause unwarranted disparities because "[f]irearms
are less likely to cause harm in more rural areas, if only because they are less likely to cause harm
to innocent bystanders." Lucania, 379 F. Supp. 2d at 296.

But, nothing in the reports cited by the District Court supports the conclusion that the risk
of harm from firearms is greater in more densely populated cities than in the rest of the country.
According to the data cited, there are more homicides in large cities than in small cities and
suburban and rural areas. See Trends by City Size. The report cited, however, does not compare

"homicide rates" in these geographic subdivisions, as the District Court apparently believed, see
Lucania, 379 F. Supp. 2d at 295; rather, it compares the absolute number of homicides in large
cities and other areas. As my dissenting colleague notes, when homicide victimization rates per
100,000 inhabitants are considered, the data reflect that recently homicide rates have not directly
correlated with city size: cities with populations between 250,000 and one million have higher
homicide rates than cities with one million or more residents. See Trends by City Size: Homicide
Victimization Rates per 100,000 Population for Cities over 100,000 by Population Group,
http://www.ojp.usdoj.gov/bjs/homicide/tables/vcitytab.htm (last visited Nov. 20, 2008).4

When we turn to the key metric - relative rates of gun-related homicides in New York

4 This remained true in 2006 and 2007. See U.S. Dep't of Justice, Federal Bureau of
Investigation, CRIME IN THE UNITED STATES: 2007, tbl.16, available at
http://www.fbi.gov/ucr/cius2007/data/table_16.html (last visited Nov. 20, 2008); U.S. Dep't of
Justice, Federal Bureau of Investigation, CRIME IN THE UNITED STATES: 2006, tbl.16, available at
http://www.fbi.gov/ucr/cius2006/data/table_16.html (last visited Nov. 20, 2008).

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City versus elsewhere - the statistics do not support the District Court's conclusion. Homicide
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rates in the region that includes New York City appear to reflect the national average, while

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"[r]ates of murder, and especially those involving guns, are higher in southern regions of the
United States -- in the East South Central, West South Central, and the South Atlantic regions."
U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide Trends
in the U.S., Regional Trends, http://www.ojp.usdoj.gov/bjs/homicide/region.htm (last visited

Nov. 20, 2008) ("The rates of the Middle Atlantic [New Jersey, New York, Pennsylvania] and

view of the fact that almost eighty percent of the United States population lives in urban areas,
see U.S. Census Bureau, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005,
Population 28, tbl.25, available at http://www.census.gov/prod/2004pubs/04statab/pop.pdf (last
visited Nov. 20, 2008), the assumption that New York City is far from the national average just
because most other locales are more rural, without further analysis, seems tenuous at best.

East North Central regions were closest to the national average of all regions."). In addition, in
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Nor, as my dissenting colleague points out, do the data suggest that innocent bystanders
face a heightened risk of harm from firearms in New York City. In 2007, "[v]ery few victims of
homicides were strangers to their perpetrators or were killed in random attacks." Press Release,
New York Police Department, Mayor Bloomberg and Commissioner Kelly Announce that City is
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on course to set a New Record in Crime Reduction - Fewest Murders Since Records Have Been
Kept, No. 2007-066 (Dec. 26, 2007), http://www.nyc.gov/html/nypd/html/pr/pr_2007_066.shtml
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(last visited Nov. 20, 2008); see also Al Baker, City Homicides Still Dropping, to Under 500,

N.Y. TIMES, Nov. 23, 2007, at A1 (reporting that the Police Department's official crime statistics

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showed in November 2007 that "with roughly half the killings analyzed, only 35 were found to

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be committed by strangers, a microscopic statistic in a city of more than 8.2 million"). This
appears to have been the case at the time of Cavera's criminal conduct as well. Homicide

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statistics for 2004 reflect that "[s]treet murders are down. Innocent bystanders, once the subject
of so many screaming headlines, no longer need Kevlar. ... New Yorkers are far less likely to be

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killed by a stranger or casual acquaintance now than 15 years ago." Shaila K. Dewan, As
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Murders Fall, New Tactics Are Tried Against Remainder, N.Y. TIMES, Dec. 31, 2004, at B1; see
also Greg Gittrich, Death (Mostly) by Association, N.Y. DAILY NEWS, Oct. 1, 2004, at 3 (quoting
Police Commissioner Raymond Kelly in 2004 as stating that "[i]t is highly unlikely that a tourist
or a law-abiding citizen would be the victim of murder"). If nothing else, the statistics show that

it is neither obvious nor common sense that firearms present a heightened risk of injury to
bystanders in New York City because it is densely populated, at least not in the recent years
during which Cavera committed his crime.5

In sum, the fact that more homicides occur in large cities than in rural or suburban areas
does not support the inference that the rate of homicides is greater in New York City than on
average in this country. Even assuming a higher homicide rate in New York City, the fact that
New York City is more densely populated does not support the inference that more innocent
bystanders may be hurt by gun violence in New York City than on average in this country. And
even assuming that more guns in New York City means more potential for harm here than on

5 The FBI specifically cautions readers of its annual CRIME IN THE UNITED STATES report
against ranking jurisdictions, noting that several variables, including population density, "affect
the volume and type of crime occurring from place to place," and warning that "meaningful
comparisons" require examination of "all the variables that affect crime in a . . . city ... . " U.S.
Dep't of Justice, Federal Bureau of Investigation, CRIME IN THE UNITED STATES: 2007, Caution
Against Ranking: Variables Affecting Crime, available at
http://www.fbi.gov/ucr/cius2007/about/variables_affecting_crime.html (last visited Nov. 20,
2008).

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average elsewhere, there is nothing to support the assumption that trafficked guns in New York

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City are more likely to cause harm than they would on average in the country.

## 3. The District Court's Use of New York's Strict Gun Laws

The District Court also erred in concluding that "a more severe penalty is necessary to
produce adequate deterrence." See Lucania, 379 F. Supp. 2d at 295. The majority suggests that
the District Court's deterrence rationale has "considerable support." Maj. Op. at [23]. I do not
disagree, as a general matter, that a district judge may rely on the need for greater deterrence
based on a finding that firearms trafficking into New York City is more profitable than on
average nationwide.6 But here, ultimately, there is no support, much less "considerable support"
for the finding that firearms trafficking into New York City is more profitable than firearms
trafficking on average in the country.

The article the District Court relied on to note parenthetically that New York City is "one
of the 'unusual areas' to which running guns is a profitable enterprise" does not make the claim
that gun running into New York City is more profitable than gun running on average nationwide.
See Lucania, 379 F. Supp. 2d at 295 (citing Gary Kleck, BATF Gun Trace Data and the Role of
Organized Gun Trafficking in Supplying Guns to Criminals, 18 ST. LOUIS. U. PUB. L. REV. 23, 41
(1999) (hereinafter Kleck, BATF Gun Trace Data)). In fact, as my dissenting colleague also
explains, the study only speculates that "there may well be unusual areas, such as New York
City, Washington, D.C., or Boston, where the supply of legally owned guns and stolen guns
circulating among criminals is low enough to leave room for criminal entrepreneurs to make a

6 This would be uncontroversial where a district judge finds, for example, that a particular
defendant was motivated by the potential for greater profits in New York than elsewhere. But
here, no such finding of Cavera's motivations was made.

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living selling guns illegally." Kleck, BATF Gun Trace Data, at 41.

The study's main conclusion is that "organized high-volume gun trafficking appears to
account for a few percent of the guns acquired by criminals," thus refuting the theory that
trafficking accounts for a significant share of criminals' guns. Id. at 42 ("Criminals obtain guns .
. . primarily by way of unrecorded, one-at-a-time transfers, some legal, some not, from people not
in the illegal gun trafficking business. . . . [O]rganized trafficking of guns . .. accounts for no
more than a tiny share of the guns obtained by criminals."). In line with that, the study
undermines the notion that firearms trafficking is a significant source for criminals even in cities
with strict gun laws when it notes, referring to Boston, that "even in a city subject to unusually
strict gun laws, where opportunities for gun traffickers to profit should be at their maximum,
probably less than 7% of crime guns recovered by police[] showed some solid indication of
having been trafficked." Id. at 28-29 (emphasis added). If the vast majority of crime guns are
being obtained through routes other than illegal gun trafficking, then the demand for trafficked
guns and thus potential profits may not be as high as otherwise assumed. Moreover, evidence
that guns cost more in New York City than elsewhere does not establish that greater profits are
available in the City than in other destinations for trafficked guns. See Maj. Op. at [23-24 &
n.14]. Increase in the cost of a gun does not automatically lead to increased profits if the
expenses also go up, say, as a result of the additional efforts needed to avoid stricter gun control
enforcement.7

Even assuming the evidence supports an inference that higher profits are available, the
District Court did not explain how that made New York City different from other places in the

7 As my dissenting colleague also emphasizes, I find the majority's efforts to bolster the
District Court's rationale through economic theories troublesome.

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country where gun trafficking occurs. It certainly bears keeping in mind that the purpose of New
York State's very strict gun laws is undermined when guns are brought into the state illegally;
2

however, that problem was the main reason for 18 U.S.C. § 922(a), and presumably its

3
4
accompanying sentences, in the first place. Section 922(a)(5) was passed specifically to remedy
the major problem created by persons in states with restrictive laws obtaining guns from states
.

5
6

with less restrictive gun control laws. See, e.g., S. REP. No. 90-1097, as reprinted in 1968

U.S.C.C.A.N. 2112, 2164 ("Two prime sources of firearms to criminals, juveniles, mental

8
defectives, and crime-bent individuals which involve access to guns through interstate routes are
the mail-order common carrier source and the out-of-state, nonresident source. ... Because of
9

interstate, nonresident purchases of firearms for criminal purposes, the laws of our States and
their political subdivisions are circumvented, contravened, and rendered ineffective.").8 Thus, as
my dissenting colleague also notes, the Guidelines may already account for any deterrence
rationale.

18
19
20

Certainly a potential for greater profits in a particular locale and a need for greater
deterrence are not inconsequential matters when determining the appropriate sentence. Here,
however, the conclusion that increased profits are to be had from trafficking guns into New York
City does not follow from the evidence. The District Court failed to explain how the data cited
supported an inference that greater profits were available to gun traffickers targeting New York
City, and failed to explain how the Guidelines range inadequately accounts for the potential for
greater profits given that the statute was aimed at combating that problem in the particular locales

8 Section 922 was originally enacted by Section 902 of the Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 229, and was later amended by
Section 102 of the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213, 1217-18.

10
11
12
13
14
15
16
17

1
with strict gun laws.

## 4. Conclusion

For these reasons, I would find that the links between the facts and the conclusions in this
case are so tenuous as to verge on speculation and that the sentence does not survive
reasonableness review. While a need for greater deterrence and a potential greater risk to
innocent bystanders are indubitably valid concerns for a sentencing judge, when a district court
bases its finding that these factors are present on sociological data, there must be a reasoned basis
8
9
10
for concluding that the data support the finding. Here, the perceived needs are not founded in the
facts, the data cited do not support the inferences drawn, and reflexive evocation of common
sense does not resolve the issue because of the countervailing evidence. In reviewing sentences,
11
we would be wise to recall that "[i]t is our duty to see that the force of the state, when it is
brought to bear through the sentences of our courts, is exerted with the maximum we can muster
of rational thought, humanity, and compassion." Marvin E. Frankel, CRIMINAL SENTENCES: LAW

12
13
14
15
16
17
18
19

WITHOUT ORDER 124 (1973). The District Court's reasoning, as it stands, leaves me wholly
unconvinced that the inferences the District Court drew from the record facts and conclusions it
made to support Cavera's above-Guidelines sentence were reasonable or rational. For these
reasons I join my colleague's concurring and dissenting opinion. I would remand to the District

Court for resentencing in light of Kimbrough, 128 S. Ct. 558, and Gall, 128 S. Ct. 586.

2
3
4
5
6
7

SOTOMAYOR, Circuit Judge, joined by Judge CARDAMONE and Judge STRAUB, concurs in
part and dissents in part. Judge POOLER joins, in part, the dissent.1

I join in the majority's conclusions in Parts I and II(A) regarding our authority to review
sentencing decisions. But I dissent from the majority's overly deferential review of the district
court's variance, on general policy grounds, from the Sentencing Guidelines; and I join in my
colleague's dissenting and concurring opinion. None of the district court's stated reasons for its
variance were adequately supported by objective criteria. Consequently, the sentence should be
vacated and the case remanded.

As the majority recognizes, the Supreme Court has held that sentencing courts, in certain
circumstances, are authorized to weigh generally applicable policy factors. Maj. Op. at 15 (citing
Kimbrough v. United States, 128 S. Ct. 558, 570 (2007)). The Supreme Court, however, has not
suggested that this power is unfettered. To the contrary-and as acknowledged by the majority
(Maj. Op. at 16 & n.9)-the Supreme Court has distinguished different categories of cases to
which varying degrees of appellate scrutiny apply. Kimbrough, 128 S. Ct. at 574-75. In the case
before us, "closer review" is warranted because the district court "varie[d] from the Guidelines
based solely on the judge's view that the Guidelines range fail[ed] properly to reflect [18 U.S.C.]
§ 3553(a) considerations even in a mine-run case." Id. at 575 (internal quotation marks omitted).
The Supreme Court, however, did not elaborate on what it meant by "closer review," and the
majority opinion avoids fleshing out this standard. Although its contours remain imprecise,

1 Judge Pooler does not join, and takes no position, in the discussion regarding the district
court's conclusion that defendant-appellant's offense was more harmful than the national average
offense to which the Guidelines catered because the guns were destined for an urban and densely
populated area.

"closer review" must amount to more than the majority's excessive deference to the district
court's decision, which risks a regression of the sentencing process to the "greatest deficiencies
of the pre-Guidelines regime," namely "its failure to provide for review of the decisions of
sentencing judges and its failure to ensure that the sentencing judge's exercise of discretion was
informed by authoritative criteria and principles." Kate Stith & José A. Cabranes, Judging
Under the Federal Sentencing Guidelines, 91 Nw. U. L. Rev. 1247, 1253-54 (1997).2

Closer review is warranted where, as happened in this mine-run case, a district court
implements a policy decision applicable to a wide class of offenders that is at odds with the
Sentencing Commission. As the district court recognized, despite Congress's direction to
consider the "community view of the gravity of the offense," 28 U.S.C. § 994(c)(4), "[t]he
[Sentencing] Commission has, so far, never accepted the invitation to craft regional Guidelines,"
at least with respect to the firearms trafficking at issue in this case. United States v. Lucania, 379
F. Supp. 2d 288, 294 (E.D.N.Y. 2005); see Reena Raggi, Local Concerns, Local Insights, 5 Fed.
Sent'g Rep. 306, 306 (1993) ("When I voiced my concern to the Sentencing Commission about
these guidelines for gun trafficking as they applied in New York, I was told that other parts of the
country viewed gun crimes differently and that the guidelines were meant to reflect an average.").
But the Sentencing Commission has deemed regional or population-based adjustments to be

2 The result of these failures was evident in a Second-Circuit study conducted prior to the
Guidelines, in which trial judges were asked to sentence hypothetical offenders using identical
presentence reports. Anthony Partridge & William B. Eldridge, The Second Circuit Sentencing
Study: A Report to the Judges of the Second Circuit 1-3 (1974). The disparities were vast.
Punishments for a bank robber ranged from five to eighteen years in prison. Id. at A-9. A seller
of heroin was incarcerated from one to ten years depending on the judge. Id. at A-11. The study
concluded that the sentencing pattern displayed in this Circuit was "not one of substantial
consensus with a few sentences falling outside the area of agreement. Rather, it would appear
that absence of consensus is the norm." Id. at 9.

appropriate in other, limited circumstances.3 Thus, the Sentencing Commission's decision not to
differentiate firearms trafficking sentences based on the firearms' destinations- despite a
general invitation from Congress, a specific suggestion from at least one federal judge and the
Sentencing Commission's consideration of population and locale in another
circumstance-suggests a deliberate "balance" between "the comparative virtues and vices of
broad, simple categorization and detailed, complex subcategorization." U.S. Sentencing
Guidelines Manual Ch. 1 Part A.1.3.

Closer review is also appropriate because the judge's sentence, in addition to being in
tension with the Sentencing Commission, was not grounded in the district court's "discrete
institutional strengths." Kimbrough, 128 S. Ct. at 574; see Maj. Op. at 15-16 ("[O]ur review
must be informed by the discrete institutional strengths of the Sentencing Commission and the
district courts.") (internal quotation marks omitted). A sentencing judge's expertise lies in his
"greater familiarity with . .. the individual case and the individual defendant before him than the
[Sentencing] Commission or the appeals court." Kimbrough, 128 S. Ct. at 574 (internal
quotation marks omitted). The district court's competence wanes as it moves from a case's
particularities evaluated through the framework of § 3553(a) to overarching considerations of

3 See, e.g., U.S. Sentencing Guidelines Manual § 2H4.1(b)(4) & cmt. n.2 (defining "any
other felony offense" with reference to "federal, state, or local law"); id. § 2K2.1(b)(2) & cmt.
n.6 (allowing for reduction in offense level if firearms were possessed solely for lawful sporting
or collecting purposes, depending upon, inter alia, "the extent to which possession was restricted
by local law"); cf. U.S.S.C. Public Hearing Panel V, United States Sentencing Commission (Mar.
15, 2006) (Statement of John Rhodes, Federal Defenders of Montana), available at
http://www.ussc.gov/hearings/03_15_06/0315USSC.pdf (opposing proposed Guidelines
enhancement for firearms trafficking based on existence of "unlawful scheme" because "what's
an unlawful scheme in the District of Columbia may not be an unlawful scheme in Montana.
So [under the proposed enhancement] ... you're going to run into the problem of reading
regional disparity").

criminal jurisprudence. For example, a district court is uniquely positioned to make a refined
assessment of whether a crack/powder sentencing disparity is warranted because the court
sentences both defendants accused of crack-related crimes as well as defendants accused of
cocaine-related crimes. See Koon v. United States, 518 U.S. 81, 98 (1996) (explaining that
district courts have "an institutional advantage over appellate courts" in using their "day-to-day
experience in criminal sentencing" to make a "comparison with the facts of other Guidelines
cases"). But the district judge is not similarly well-situated to draw comparisons between
defendants in different courts around the country: A judge in Brooklyn who is evaluating the
relative dangers of gun trafficking throughout the nation enjoys no institutional advantage over
appellate courts or the Sentencing Commission, if only because the judge's experiences are
limited to his or her region. A district court strays far from its expertise in varying from the
Guidelines based on its disagreement with the Sentencing Commission-whose Congressionally
mandated raison d'être is "to formulate and constantly refine national sentencing standards,"
Kimbrough, 128 S. Ct. at 574-as to the proper national penal policy in response to regional
differences relating to firearms trafficking.

In her concurrence, Judge Raggi argues that this case does not warrant closer review
because the Sentencing Commission "has never considered whether the risk of harm posed by
[firearms trafficking] crimes can vary depending on the intended destination for the guns."
Concurring Op. at 8. But the impact of almost any crime will vary according to its location. See,
e.g., Vincent L. Broderick, Local Factors in Sentencing, 5 Fed. Sent'g Rep. 314, 314 (1993)
(arguing that "the theft of a horse would have had entirely different significance in Montana and
in Manhattan"). To argue that closer review is inappropriate unless the Sentencing Commission

has explicitly disfavored a particular local consideration "in a Guideline or policy statement"
(Concurring Op. at 10-11) ignores the uniformity at the heart of the Guidelines. See U.S.
Sentencing Guidelines Manual Ch. 1 Part A.1.3 ("Congress sought reasonable uniformity in
sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses
committed by similar offenders."). "Because one of the major purposes of the Guidelines was to
eliminate unjustified disparities in sentences among similarly situated defendants," we should
consider the Sentencing Commission to have "adequately taken a circumstance into
consideration" when, as in this case, the defendant's offense "fits squarely within the language of
the Guidelines" and the Sentencing Commission has made "conscious choices" regarding "the
circumstances underlying the offense conduct." United States v. Stultz, 356 F.3d 261, 266-67
(2d Cir. 2004) (internal quotation marks and brackets omitted).

I believe that "closer review" means that we must test a district court's application of
broad policy factors in order to ensure that the district court's conclusions can be objectively
supported and are not based on faulty assumptions. This review does not amount to a policy
debate. To the contrary, our review must focus on the district court's articulated reasons and cited
authority, evaluating whether the latter support the former. And despite Judge Raggi's
representation (Concurring Op. at 12 n.10), such closer review does not mean that we substitute
our own sentencing predilections for those of the district court. See Gall v. United States, 128
S. Ct. 586, 600 (2007) (criticizing appellate court's usurpation of district court's fact-finding role).
It does, however, mean that district courts cannot immunize their decisions from appellate review
by talismanic invocations to local "experience" and "a sort of judicial common sense." See
Concurring Op. of J. Raggi at 14-15. For example, in Kimbrough, the district court did not rest

its policy variance from the Guidelines solely upon its own courtroom experiences or legal
hypotheses; instead it referenced the Sentencing Commission's extensive research and reports
criticizing the crack/powder disparity. See 128 S. Ct. at 568, 575.4 To suggest that appellate
courts should affirm a sentencing rationale if it is plausible under any set of assumptions reduces
the Guidelines and appellate courts to what they are clearly not: "a body of casual advice, to be
consulted or overlooked at the whim of a sentencing judge." United States v. Crosby, 397 F.3d
103, 113 (2d Cir. 2005).

As the district court recognized in this case, arbitrary and subjective considerations, such
as a judge's feelings about a particular type of crime, should not form the basis of a sentence.
Lucania, 379 F. Supp. 2d at 296. The majority and I agree. Maj. Op. at 21; cf. Charles P. Sifton,
Theme and Variations: The Relationship Between National Sentencing Standards and Local
Conditions, 5 Fed. Sent'g Rep. 303, 303 (1993) (arguing that a sentence would create unwarranted
disparity if it were motivated by "an effort to set aside national norms on the basis of local
concerns without examining either the factual or legal significance of those concerns"). Yet a
serious danger exists that sentencing judges will dress their subjective views in objective
trappings, either by using questionable empirical data or by invoking a "common sense" at odds
with reality. We only encourage this confusion if we signal that our review of sentencing
decisions is cursory.

4 Likewise, in this case, when the district court varied from the Guidelines because of
defendant-appellant's advanced age and the "inverse relationship between age and recidivism,"
the district court cited numerous cases, many of which, in turn, relied upon a recidivism study of
over 6,000 individuals that was conducted in 2004 by the Sentencing Commission. Lucania, 379
F. Supp. 2d at 297-98 (citing, inter alia, United States v. Eberhard, 2005 WL 1384038, at *10
(S.D.N.Y. June 9, 2005) (citing United States Sentencing Commission, Measuring Recidivism:
The Criminal History Computation of the Federal Sentencing Guidelines (2004)).

I do not suggest that the thoughtful and respected district judge in this case sentenced
according to a caprice. His detailed opinion and its careful discussion of the § 3553(a) factors
demonstrate otherwise. The dialogue between trial and appellate courts depends upon the candor
of all judges, and the district court here is to be commended for its thorough explanation of its
sentencing decision. Nevertheless, the district court's analysis and data are insufficient to support
its conclusion that defendant-appellant deserved a severer sentence because firearms trafficking
(1) is a more serious crime in densely populated areas, and (2) requires greater deterrence in areas
with restrictive gun laws. For that reason, I believe that the enhanced sentence that the district
court imposed on defendant-appellant should be vacated and remanded for reconsideration by the
district court.

With respect to the seriousness of the offense, the district court relied on data compiled by
the Department of Justice, which indicated that "homicide rates in large urban areas remain
substantially higher than in suburban and rural areas." Lucania, 379 F. Supp. 2d at 295 (citing
U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide Trends in
the U.S., Trends by City Size, http:// www.ojp.usdoj.gov/bjs/homicide/city.htm). Yet the data say
nothing about the homicide rate in New York City, and they do not show that a gun in New York
City is more likely to hurt people than a gun elsewhere. More generally, the data do not
demonstrate that homicide rates increase as population density increases because they do not
consider the population density of a city, but only the total population. To the extent that the data
are relevant, a district court could conclude that gun trafficking into more populated cities is less
dangerous than gun trafficking elsewhere because the data demonstrate that over the last five
years covered by the report (2001-2005), the average homicide rate in cities with populations

between 250K-499K was approximately 10% higher than the homicide rate in the largest cities.
See U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide
Trends in the U.S., Homicide Victimization Rate,
http://www.ojp.usdoj.gov/bjs/homicide/tables/vcitytab.htm (last visited November 19, 2008)
("DOJ Homicide Statistics").5 The same data could support either a harsher or a more lenient
sentence, and some of my colleagues' reasoning suggests that this Court would be required to
affirm either outcome. See Concurring Op. of J. Raggi at 6 (arguing that there was no procedural
error where the district court "modestly considered the seriousness of [defendant-appellant]'s
crime by reference to the community for which the illegal guns were intended"). Although district
courts need not always rely upon empirical data when varying from the Guidelines, a sentence

5 The statistics cited by the district court indicate that, in 2005 (when defendant-appellant
was sentenced (Maj. Op. at 4)), the homicide rates per 100,000 people were as follows:

Population:

One Million +

500K - 999K

250K - 499K

100K - 249K

Homicide Rate:

13.0

14.8

15.2

10.1

DOJ Homicide Statistics. These data indicate that, in 2005, the homicide rate for cities with
populations of 250K-499K was approximately 17% greater than the homicide rate of the largest
cities. Furthermore, it is noteworthy that New Orleans and Gary, Indiana, which did not even
rank among the 30 most densely populated American cities (based on population per square
mile) according to the resource relied upon by the district court, have had the highest homicide
rates in the country. See National League of Cities, 30 Most Densely Populated Cities,
http://www.nlc.org/about_cities/cities_101/187.aspx (last visited November 8, 2008); Rick
Jervis, "New Orleans Homicides up 30% Over 2006 Level: City on Track to Retain
Most-Murderous Label," USA Today, Jan. 3, 2008. Yet, following Judge Raggi's reasoning
(Concurring Op. at 21-22), a sentencing judge would be correct to infer a heightened risk of
harm from firearms trafficking in a more densely populated but safer American city. But see
Hanna Rosin, "American Murder Mystery," The Atlantic, July/Aug. 2008, available at
http://www.theatlantic.com/doc/200807/memphis-crime (exploring why "America's most
dangerous spots" now include cities such as "Florence, South Carolina; Charlotte-Mecklenburg,
North Carolina; Kansas City, Missouri; Reading, Pennsylvania; Orlando, Florida; [and]
Memphis, Tennessee").

should not be sustained when the data cited by a district court undermine its own conclusions.

The district court implied that common sense dictates that a gun is more dangerous in
more densely populated areas because of the higher likelihood that random bystanders might be
shot. Lucania, 379 F. Supp. 2d at 296. But the district court erred in not scrutinizing more
closely its "common sense" assumptions. Even if true that there is a slightly higher statistical
probability that a gun will cause harm to a bystander in a densely populated area, it does not
necessarily mean that the incremental increase in dangerousness is worthy of an increase in the
sentence imposed. Moreover, the "vast majority" of homicide victims in New York City last year
were not strangers to their assailants. Al Baker, City Homicides Still Dropping, to Under 500,
N.Y. Times, Nov. 23, 2007, at A1 (concluding that "[t]he low number of killings by strangers
belies the common imagery that New Yorkers are vulnerable to arbitrary attacks on the streets, or
die in robberies that turn fatal"). This means that defendant-appellant received an increase in his
sentence based on mere speculation that one of the guns he sold might have harmed a bystander in
New York City, and that this harm would not have happened if he had sold the guns in a less
densely populated area. The district court did not sufficiently analyze whether the risk of harm to
bystanders in New York City justified a more severe sentence for defendant-appellant. See United
States v. Anati, 457 F.3d 233, 238 (2d Cir. 2006) (noting, in dicta, that to the extent that "the
special impact of [an] offense in a particular geographic community .. . might be relevant, there
might have to be some empirical basis for deeming the impact of a heroin offense in a particular
community more serious than the assessment made by the Sentencing Commission." (emphasis
added)), overruled in part on other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201-02
& n.1 (2008). Instead, it simply assumed that these weapons posed a greater danger in New York

City than elsewhere because of population density.6

The district court's other rationale for imposing a non-Guidelines sentence was based on
"general deterrence." The majority affirms the district court's sentence on this basis (Maj. Op. at
23-26), even though the district court's reasoning was unsubstantiated and unconvincing. In
concluding that firearms trafficking is more profitable in New York City than in less tightly
regulated areas, the sentencing judge's sole support was a law review article that
hypothesized-without the benefit of data- that "there may well be unusual areas, such as New
York City, Washington, D.C., or Boston, where the supply of legally owned guns and stolen guns
circulating among criminals is low enough to leave room for criminal entrepreneurs to make a
living selling guns illegally." Gary Kleck, BATF Gun Trace Data and the Role of Organized Gun
Trafficking in Supplying Guns to Criminals, 18 St. Louis Univ. Pub. L. Rev. 23, 41 (1999). The

6 In her concurrence, Judge Raggi cites several newspaper articles not relied upon by the
district court as evidence of "the significant number of New Yorkers, many of them children,
who are regularly injured by random gunfire." Concurring Op. at 18-19. This parade of
horribles is not limited to New York City. See, e.g., Jon Gambrell, "Curfew Widened in
Crime-Ridden Arkansas Town," Houston Chronicle, Aug. 17, 2008, at A8 (describing residents
of Helena-West Helena sleeping on floors of their houses out of fear of stray bullets). In
addition, a brief review of headlines from the city of New Orleans during the last eighteen
months uncovered numerous articles describing victims of stray bullets, including the following:

\- "New Orleans Police Blotter," New Orleans Times-Picayune, Oct. 9, 2008, at 3 ("A
17-year-old girl was hit in the leg by one or more stray bullets fired by a stranger.").

\- Katy Reckdahl, "Woman with Gun Terrorizes Children," New Orleans Times-Picayune,
July 17, 2008, at 1.

\- Mary Sparacello, "Housing Authority Reining in Parties: Kenner Shooting Leads to
Regulations," New Orleans Times-Picayune, Oct. 11, 2007, at 1 ("Three children, 7, 8
and 13, were struck by stray bullets" at birthday party for five-year-old twins.).

Walt Philbin, "Man Carrying Baby Hit by Stray Bullets in Drive-By," New Orleans
Times-Picayune, July 14, 2007, at 1.

district judge did not make any finding as to where the majority of firearms trafficking offenses
occur, and he assumed that the firearms trafficking offenses which make up the Guidelines'
"national average" are spread evenly throughout the country rather than clumped in certain areas.
But if the article cited by the district court is correct that the black market for guns is only
profitable in a few areas like New York, Washington, D.C. and Boston, then it may well be that
firearms trafficking crimes occur almost entirely or predominantly in those areas, in which case
the Guidelines may already account for any deterrence issues raised by New York's strict gun
laws. If so, defendant-appellant's sentence would have been needlessly increased.

The majority states that firearms trafficking is more profitable in areas with strict gun laws
because more regulation increases the costs of obtaining a gun. And "[w]here the profits to be
made from violating a law are higher, the penalty needs to be correspondingly higher to achieve
the same amount of deterrence." Maj. Op. at 24.7 The majority commits a fundamental error by
attempting to bolster the sentencing judge's argument by relying upon articles and economic
theories never referenced by the district court. This shifts the appellate court's role from

7 The majority oversimplifies the economic incentives faced by firearms traffickers. In
discussing deterrence, the majority focuses only on the severity of the penalty. But the expected
cost of firearms trafficking is a function of both the sanction's magnitude and the probability of
getting caught. See Richard A. Posner, Economic Analysis of the Law, § 7.2 (7th ed. 2007) (“An
expected punishment cost of $1,000 can be imposed by combining a fine of $1,000 with a
probability of apprehension and conviction of 1 .... "). In areas with strict local gun laws,
firearms traffickers may face a greater risk of apprehension than in more lax regimes. The
majority seems to acknowledge this point when it later asserts that "stringent local gun
regulations create a higher barrier to entry" for firearms traffickers. Maj. Op. at 24 n.14; see
Concurring Op. of J. Raggi at 22 (noting New York City's "decade-long commitment of
increased police resources to removing illegal guns from the street"). Accordingly, even without
increasing the sanctions on gun trafficking, the expected cost for this offense may be sufficiently
elevated in more tightly regulated markets so as to achieve the same amount of deterrence present
in more lax regimes. Regardless, the speculative nature of these arguments only emphasizes the
need for data, an ounce of which would be worth a ton of theory.

reviewing the lower court's sentencing rationale to crafting it. Even assuming that the majority's
general deterrence rationale were correct, defendant-appellant's case is a particularly poor
application. Defendant-appellant sold his guns in Florida, and nothing in the record indicates that
he profited more on his sales to New York than on his sales to other destinations.

There are additional reasons to be skeptical and wary of the district court's theory of
general deterrence. First, it is unrealistic to believe that gun traffickers willing to risk up to
twenty-five years under New York law (N.Y. Penal Law §§ 70.02, 265.13 (Mckinney 2008)) will
now be more deterred by the possibility that, if they are charged in federal court, a federal
sentencing judge in New York may increase their sentence based on the gun destination. Second,
determinations regarding general deterrence may be highly subjective, and we must be careful that
the individual defendant is not lost in a stereotype. If we accept the unsubstantiated general
deterrence theory here, then we open the door to sentencing increases or decreases based on a
litany of socio-economic factors that some study shows are linked with an increased or decreased
likelihood of committing a particular crime. Finally, deterrence assumes that potential violators
can anticipate what punishment they might receive. To the extent that consequences for the same
federal offense vary widely from one judge to the next, deterrence is undermined because "a
defendant who comes up for sentencing has no way of knowing or reliably predicting whether he
will walk out of the courtroom on probation, or be locked up for a term of years that may consume
the rest of his life, or something in between." Marvin E. Frankel, Criminal Sentences: Law
Without Order 6 (1973); see U.S. Sentencing Guidelines Manual Ch. 1 Part A.1.3 ("A sentencing
system tailored to fit every conceivable wrinkle of each case would quickly become unworkable
and seriously compromise the certainty of punishment and its deterrent effect.").

Even if I were to find adequate the district court's deterrence-based rationale for varying
from the Guidelines, I still would not affirm the district court's judgment. The majority held that
it need not consider the district court's argument that firearms create a greater risk of harm in
more densely populated areas because the sentencing judge's deterrence rationale provided “an
independently sufficient justification for its variation from the Guidelines." Maj. Op. at 23. But
nothing in the record demonstrates that the district court would have increased the sentence to the
same extent based solely on the deterrence rationale. We should not encourage district courts to
compile catalogs of possible justifications for their sentences in the hope that appellate courts will
sift the wheat from the chaff in pursuit of a valid reason to affirm.

I believe that district courts should be extremely careful, if not reticent, about imposing
generic policy preferences on individual defendants. I do not, however, exclude the possibility
that there may exist local conditions that may warrant a variance from the Guidelines if the
conditions are significant and have not already been factored into the Guidelines. Our criminal
justice system benefits when district courts and the Sentencing Commission engage in an
"iterative process" whose outcome minimizes unwarranted sentencing disparities while
appreciating individual nuances. See Tr. of Oral Arg. at 39, Gall v. United States, 128 S. Ct. 586
(No. 06-7949) (Breyer, J.) ("What we want ... is to interpret that word 'reasonable' so that we get
back to a situation where judges do depart when they have something unusual and maybe
occasionally when they think the guideline wasn't considered properly, and then the iterative
process takes over, going back to the commission. Now, how do we get there?"). But the
majority's approach risks casting aside the Guidelines instead of enhancing their value.
Appellate courts must not abdicate their responsibility to ensure that sentences are based

on sound judgment, lest we return to the "shameful" lack of parity, S. Rep. No. 98-225, at 65
(1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3248, which the Guidelines sought to remedy.
Gut feelings about regional differences can be subjective in dangerous ways. Empirical data
should be scrutinized because they make subjective feelings appear plausible, even when the
analysis suffers from significant flaws. We should therefore have vacated the sentence and
remanded this case to the district court for reconsideration.

POOLER, Circuit Judge, dissenting:

I join in the majority's conclusions in Parts I and II(A) regarding our authority to review
sentencing decisions as well as in Judge Straub's and Sotomayor's dissents insofar as they
address the economic deterrence basis for the sentence imposed below. I also agree with Judge
Sotomayor's analysis of the closer standard of review that should be applied in this case.
Because the majority does not rest its decision on the district's court's determination that a gun
running offense is more serious when guns are transported to New York City, I take no position
on that issue.

United States v. Gerard Cavera, aka Gerry Lake, and PETER ABBADESSA

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