U.S. v. Cavera

• Decision Date: 04 December 2008
• Docket Number: Docket No. 05-4591-cr.
• Citation: 550 F.3d 180
• Parties: UNITED STATES, Appellee, v. Gerard CAVERA, aka Gerry Lake, and Peter Abbadessa, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

550 F.3d 180

UNITED STATES, Appellee, v. Gerard CAVERA, aka Gerry Lake, and Peter Abbadessa, Defendants-Appellants.

Docket No. 05-4591-cr.

United States Court of Appeals, Second Circuit.

En Banc Rehearing: March 27, 2008.

Decided: December 4, 2008.

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.

Before: JACOBS, Chief Judge, CARDAMONE,^* CALABRESI, CABRANES, STRAUB,^† POOLER, SACK, SOTOMAYOR, KATZMANN, B.D. PARKER, RAGGI, WESLEY, HALL, and LIVINGSTON, Circuit Judges.

CALABRESI, J., filed an opinion in which JACOBS, C.J., and CABRANES, SACK, KATZMANN, B.D. PARKER, RAGGI, WESLEY, HALL, and LIVINGSTON, JJ., joined, and which CARDAMONE, STRAUB, POOLER, and SOTOMAYOR, JJ., joined as to Parts I and II.A.

KATZMANN, J., filed a concurring opinion in which CABRANES, SACK, and HALL, JJ., joined.

RAGGI, J., filed a concurring opinion in which JACOBS, C.J., and CABRANES and B.D. PARKER, JJ., joined.

STRAUB, J., filed an opinion, joined by CARDAMONE, POOLER, and SOTOMAYOR, JJ., concurring in Parts I and II.A., and dissenting in part.

POOLER, J., filed an opinion joining the majority's conclusions in Parts I and II.A, and dissenting in part.

SOTOMAYOR, J., filed an opinion concurring in part and dissenting in part. CARDAMONE and STRAUB, JJ., joined, and POOLER, J., joined, in part, the dissent.

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

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 after finding that the Sentencing Guidelines failed to take into account the need to punish more 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, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). With the benefit of the guidance afforded by those rulings, we now affirm the 10 judgment of the district court.

I.

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

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 instead reflect a national average. Id. at 293-94. For this reason, the Guidelines were "less 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 of two of the § 3553(a) factors. Focusing first on the need for the sentence to reflect the 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 Guidelines. "Firearms smuggled into New York City commonly end up in the hands of those 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 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.

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." 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 New York City as "one of the `unusual areas' to which running guns is a profitable enterprise." 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.

Cavera appealed the sentence. Initially, the Government agreed with Cavera that the sentence could not stand.⁴ Writing before Gall and Kimbrough, a...