U.S.A. v. Cavera, No. 05-4591 (2d Cir. 2007)

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The court issued a subsequent related opinion or order on December 4, 2008.

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05-4591(L) U.S.A. v. Cavera 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2005 (Argued May 16, 2006 Decided October 11, 2007) Docket Nos. 05-4591-cr(L), 05-5210-cr(CON) _______________ United States of America, Appellee, v. Gerard Cavera, aka Gerry Lake and Peter Abbadessa, Defendants-Appellants. _______________ Before: CARDAMONE, CALABRESI, and POOLER, Circuit Judges. _______________ Defendant Gerard Cavera appeals from the judgment entered August 23, 2005 in the United States District Court for the Eastern District of New York (Sifton, J.), convicting him, upon his guilty plea, of conspiring to deal in and transport firearms in violation of 18 U.S.C. § 371. Cavera was sentenced to 24 months imprisonment, 3 years supervised release, a $60,000 fine, and a $100 special assessment. Defendant challenges his sentence, alleging the district court erred by imposing a sentence above the advisory U.S. Sentencing Guidelines range of 12 to 18 months and in refusing to grant him a downward departure on the basis of his wife's illness. He also requests that the case be remanded to a different sentencing judge. Affirmed in part, vacated in part, and remanded. _______________ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 _______________ JEFFREY A. RABIN, Brooklyn, New York (Law Office of Jeffrey A. Rabin, Brooklyn, New York, of counsel), for DefendantAppellant Gerard Cavera, aka Gerry Lake. TARYN A. MERKL, Assistant United States Attorney, Brooklyn, New York (Roslynn R. Mauskopf, United States Attorney, David C. James, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee United States of America. _______________ Daniel A. Hochheiser, Hochheiser & Hochheiser, LLP, New York, New York, filed a brief Amicus Curiae for the United States District Court for the Eastern District of New York. 1 CARDAMONE, Circuit Judge: 2 This appeal prompts us to write further on the subject of 3 federal criminal sentencing in the aftermath of United States v. 4 Booker, 543 U.S. 220 (2005).1 5 mandatory teeth of the United States Sentencing Guidelines 6 (Guidelines) by rendering them advisory, and that Justice 7 Breyer's remedy opinion put some bite back into the Guidelines by 8 requiring courts when sentencing defendants to "consider" them. 9 See id. at 259-60. All agree that Booker removed the We, like our sister circuits, are still 10 putting flesh on the skeleton issue of what it means to consider 11 the Guidelines, and -- as we address specifically in this case -- 12 when and under what circumstances a district court may impose a 13 non-Guidelines sentence. 14 Defendant Gerard Cavera (defendant) appeals the August 23, 15 2005 judgment of the United States District Court for the Eastern 16 District of New York (Sifton, J.) following his conviction on a 17 guilty plea to one count of conspiring to deal in and transport 18 firearms in violation of 18 U.S.C. § 371. 19 recommended Guidelines range for Cavera's offense was 12 to 18 20 months imprisonment and a fine of $3,000 to $30,000, the district 21 court imposed a non-Guidelines sentence of 24 months 1 Although the Our initial opinion in this case, issued on June 6, 2007, prompted comments from several members of the Court. In an effort to address the concerns they expressed, the panel decided to withdraw the earlier filed majority opinion along with the concurring opinion and issue this new opinion in their place. 2 1 imprisonment, three years supervised release, a $60,000 fine, and 2 a special assessment of $100. 3 On appeal Cavera maintains, and the government agrees, that 4 the district court committed legal error by considering the 5 population density of New York City in imposing a non-Guidelines 6 sentence. 7 position taken by the district court because both parties agreed 8 that the district court sentence was imposed in error. 9 counsel's exposition of the issues was helpful to us, and we note We appointed amicus curiae counsel to brief the Amicus 10 his commendable candor in advising the Court that his extensive 11 research unearthed scant judicial authority supporting the 12 district court's sentence. 13 that the district court erred by refusing him a downward 14 departure based on his wife's medical condition and urges the 15 case be remanded to a different district court judge for 16 resentencing. 17 Cavera also contends on this appeal Under the circumstances of this case, the district court's 18 reliance on the simple fact of population density to impose a 19 non-Guidelines sentence constituted legal error and rendered 20 defendant's sentence unreasonable. 21 remand the case for resentencing, although we see no reason to 22 remand it to a different sentencing judge. 23 court's refusal to grant Cavera a downward departure for family 24 circumstances is not appealable. 3 We must therefore vacate and Finally, the district 1 FACTS AND BACKGROUND 2 A. Cavera's Personal Background 3 Cavera is over 70 years old and an army veteran. After 4 discharge from military service, he operated an auto garage 5 during the 1970s and 1980s. 6 1986 and eight years later went into the contracting business. 7 With a net worth of over one million dollars, Cavera is married 8 and has five adult children who live in New York State. 9 his wife have health problems. He retired from auto repair work in He and He has been diagnosed with gout 10 and Type II diabetes. 11 in 1994. 12 continues to suffer from substantial heart problems. 13 breast cancer returned and she underwent a mastectomy. In 1995 and 1999 she suffered heart attacks and 14 15 His wife was diagnosed with breast cancer B. In 2003 her Cavera's Crime On April 8, 2004, two of Cavera's co-defendants, Peter 16 Abbadessa and Anthony Lucania, along with a government 17 confidential witness, traveled to Florida where Cavera lives when 18 away from New York. 19 $11,500 for the purchase of firearms. 20 Abbadessa and Lucania as they met with Cavera at his home. 21 there Cavera gave Abbadessa and Lucania two boxes containing 16 22 firearms. 23 York with the confidential witness. 24 The confidential witness gave Lucania The FBI then surveilled While After the sale, Abbadessa and Lucania returned to New On June 23, 2004, a grand jury returned an 11 count 25 indictment charging Cavera with various violations of federal gun 26 trafficking laws. On November 24, 2004, defendant plead guilty 4 1 to one count of conspiring to deal in and transport firearms in 2 violation of 18 U.S.C. § 371. 3 4 C. Cavera's Sentencing At sentencing the district court calculated the Guidelines 5 range for Cavera's offense to be 12 to 18 months and a fine of 6 $3,000 to $30,000. 7 Guidelines sentence of 24 months imprisonment, 3 years supervised 8 release, a $60,000 fine, and a $100 special assessment. 9 page opinion, the sentencing court explained its rationale for However, the court decided to impose a non- In a 21- 10 imposing a greater non-Guidelines sentence. 11 (a)(2) of 18 U.S.C. § 3553, which directs the court to consider, 12 inter alia, the seriousness of the offense and the need for 13 deterrence, it reasoned that gun trafficking in an urban 14 environment like New York City requires heavier sentences. 15 United States v. Lucania, 379 F. Supp. 2d 288, 293-96 (E.D.N.Y. 16 2005). 17 family circumstances noting that Cavera has ample financial 18 resources and five adult children to care for his ill wife. 19 at 292-93. 20 timely appealed. The district judge also denied a downward departure for Id. From the resulting judgment of conviction, Cavera 21 DISCUSSION 22 23 Looking at factor I Standard of Review We review both Guidelines and non-Guidelines sentences for 24 reasonableness. United States v. Rattoballi, 452 F.3d 127, 131 25 (2d Cir. 2006). The reasonableness standard entails two 26 elements: procedural reasonableness and substantive 5 1 reasonableness. 2 reasonableness we examine three factors: 3 court properly (a) identified the Guidelines range supported by 4 the facts found by the sentencing court, (b) treated the 5 Guidelines as advisory, and (c) considered the Guidelines 6 together with the other factors outlined in 18 U.S.C. § 3553(a). 7 Id. 8 the sentence is reasonable in light of the factors outlined in 18 9 U.S.C. § 3553(a)." 10 Id. at 131-32. To determine procedural whether the district Substantive reasonableness depends on whether the "length of Id. at 132. Even post-Booker, we continue to review a district court's 11 interpretation of the Guidelines de novo and its findings of fact 12 for clear error. 13 (2d Cir. 2006). 14 only if the sentencing court misapprehended its authority to 15 depart "or the sentence was otherwise illegal." 16 Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per curiam). 17 observe finally that although under our post-Booker 18 reasonableness regime we "have declined to adopt per se rules, 19 opting instead to fashion a mosaic of reasonableness through 20 case-by-case adjudication," on appeal we view "as inherently 21 suspect a non-Guidelines sentence that rests primarily upon 22 factors that are not unique or personal to a particular 23 defendant." See United States v. Mejia, 461 F.3d 158, 162 We may review a refusal to downwardly depart United States v. We Rattoballi, 452 F.3d at 133 (emphasis added). 6 1 2 3 4 5 II The Non-Guidelines Sentence Based on Population Density Is Unreasonable in this Case Both Cavera and the government assert the district court's non-Guidelines sentence is unreasonable. 6 A. In General 7 The crux of the district court's argument for Cavera's 8 above-Guidelines sentence is its belief that trafficking firearms 9 in urban environments threatens greater harm than trafficking in 10 less densely populated places. 11 the district court makes no reference to any characteristic 12 particular to the defendant or his crime, but relies entirely on 13 circumstances common to all defendants charged with gun 14 trafficking in New York and similar large cities. 15 the court seems to devise and employ a formula requiring the 16 length of sentences for gun trafficking to rise or fall with the 17 population density of the locality where the weapons are expected 18 to end up.2 19 In explaining Cavera's sentence, In so doing, We emphasize our concern that the district court's 20 demographics-based approach to sentencing runs contrary to one of 21 the primary purposes of the Guidelines: 22 sentencing disparity. 23 Congress was troubled by studies showing disparate sentences 24 imposed on federal defendants who had committed similar crimes. to diminish unwarranted Prior to the passage of the Guidelines, 2 This does not mean that a court may never consider characteristics of the locality in which the weapons are expected to end up in deciding the seriousness of a particular defendant's crime and especially in determining what is necessary properly to deter that defendant. See infra note 3. 7 1 To deal with this problem, Congress enacted the Guidelines, 2 bringing nationwide uniformity to federal criminal sentences. 3 See Booker, 543 U.S. at 250 ("Congress' basic statutory goal [is] 4 a system that diminishes sentencing disparity . . . ."); 5 Rattoballi, 452 F.3d at 133-34 ("Disparate sentences prompted the 6 passage of the Sentencing Reform Act and remain its principal 7 concern."); United States v. Florez, 447 F.3d 145, 157 (2d Cir. 8 2006). 9 disparities in sentences meted out by different district courts Put differently, the Guidelines aim to eliminate 10 to defendants who commit similar offenses. 11 Guidelines, a defendant who commits crime "x" in Chicago will be 12 punished, all other things being equal, similarly to a defendant 13 who commits crime "x" in Savannah. 14 factors -- factor (a)(6) -- provides that in determining the 15 particular sentence of a defendant, the court shall consider the 16 "need to avoid unwarranted sentence disparities among defendants 17 with similar records who have been found guilty of similar 18 conduct." 19 Thus, under the Indeed one of the § 3553(a) 18 U.S.C. § 3553(a)(6). With the above in mind, it seems plain that the district 20 court's formulaic approach threatens to undermine a primary 21 purpose of the Guidelines. 22 result in a return to disparate sentences across districts where 23 courts fashion sentences, not on facts unique to defendants' 24 conduct or circumstances, but solely on the urban or rural 25 character of each court's geographic jurisdiction. 26 government correctly points out, were we to take this reasoning The trial court's reasoning would 8 As the 1 to its logical conclusion, manifold crimes that take place in 2 urban areas would be subject to a presumption of a higher non- 3 Guidelines sentence; and, conversely, crimes committed in rural 4 and less populated areas would be subject to a presumption of a 5 lower non-Guidelines sentence. 6 7 Hence, we proceed with caution to review the district court's account for Cavera's sentence. 8 9 10 11 B. Critique of the Support Cited by the District Court For Its Decision 12 The trial court believes the congressionally authorized 1. Fast-Track Programs 13 "fast-track" programs lend support to its approach. See Lucania, 14 379 F. Supp. 2d at 297. 15 defendant a reduced sentence in exchange for a waiver of certain 16 rights, started in districts along the southwest border of the 17 United States where a high incidence of illegal re-entry cases 18 severely strained local resources. 19 by Congress in § 401(m)(B) of the Prosecutorial Remedies and 20 Other Tools to End the Exploitation of Children Today Act of 21 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003). 22 Mejia, 461 F.3d at 160-61 (discussing history and regulation of 23 the various fast-track programs). 24 that any disparity resulting from its consideration of New York 25 City characteristics is "at least as well justified as the 26 disparity created by these fast-track programs." 27 Supp. 2d at 297. Fast-track programs, which offer a 9 The programs were authorized See generally The district court insists Lucania, 379 F. 1 We do not think the existence or congressional sanction of 2 the fast-track programs is helpful to the district court's 3 position. 4 that any disparity resulting from these programs is not 5 unwarranted. 6 approved of fast-track programs without mandating them; Congress 7 thus necessarily decided that they do not create the unwarranted 8 sentencing disparities that it prohibited in Section 9 3553(a)(6)."). Since the date of the decision below we have explained See Mejia, 461 F.3d at 163 ("Congress expressly The participation of Congress in the 10 establishment and regulation of fast-track programs sharply 11 distinguishes such programs from the approach taken by the 12 district court. 13 obtain other benefits, congressional participation ensures that 14 other goals of the Sentencing Reform Act, including transparency, 15 are preserved. 16 Transparency in Sentencing: 17 Disposition Departure, 27 Hamline L. Rev. 357, 360-65, 373 (2004) 18 (noting benefits of localization, but emphasizing need for formal 19 localization mechanisms within the Guidelines to promote 20 transparency in the incorporation of local factors in 21 sentencing). 22 While fast-track programs forsake uniformity to See Michael M. O'Hear, Localization and Reflections on the New Early More fundamentally, Congress and, by proper delegation, the 23 Sentencing Commission act appropriately when they assess the 24 societal costs and benefits of punishing a category of crimes 25 prosecuted in different districts in a uniform fashion. 26 federal court acting unilaterally is generally not in a position 10 A 1 similarly to assess societal costs and benefits. 2 the Supreme Court has made clear, "[i]n our system, so far at 3 least as concerns the federal powers, defining crimes and fixing 4 penalties are legislative, not judicial, functions." 5 States v. Evans, 333 U.S. 483, 486 (1948); see United States v. 6 Castillo, 460 F.3d 337, 356 (2d Cir. 2006). 7 8 2. Moreover, as United Section 3553(a)(2) We recognize that the district court rooted its non- 9 Guidelines sentence in a § 3553(a) factor, namely subsection 10 (a)(2), which provides that in crafting a sentence the court 11 should impose a sentence that reflects the seriousness of the 12 offense and the need for deterrence. 13 do not mean to suggest that the consideration of sentencing 14 disparity under factor (a)(6) trumps or should be given more 15 weight than considerations under factor (a)(2). 16 F.3d at 158 (noting that the weight to be given any § 3553(a) 17 factor is committed to the discretion of the sentencing court and 18 beyond appellate review). 19 district court erred in its analysis under factor (a)(2) by 20 sentencing Cavera on the basis of a policy judgment concerning 21 the gravity of firearms smuggling into a heavily populated area, 22 like New York City, rather than on circumstances particular to 23 the individual defendant and his crime, see Rattoballi, 452 F.3d 24 at 133. 25 separate crime -- gun trafficking in urban environments -- and 26 fixes an above-Guidelines penalty for that crime. 18 U.S.C. § 3553(a)(2). We See Florez, 447 Rather, we hold simply that the The district court's approach effectively defines a 11 1 We have cautioned the district courts against misapplying 2 their sentencing authority to make policy decisions relating to 3 an entire class of offenses. 4 F.3d 71, 76 (2d Cir. 2007) ("Sentencing policy is for Congress 5 and the Sentencing Commission, not judges."); United States v. 6 Sung Soo Park, 461 F.3d 245, 249 (2d Cir. 2006) ("[P]olicy 7 determinations concerning the relative severity of punishments 8 for particular types of offenses continue to be left to 9 Congress."); cf. United States v. Mishoe, 241 F.3d 214, 218 (2d See United States v. Trupin, 475 10 Cir. 2001) (holding, before Booker, that departures must be based 11 on individual circumstances of defendant's case rather than on 12 general rules). Recently, we outlined the statutory basis for the 13 distinction drawn between sentences applicable to categories of 14 crimes and those properly tailored by a district judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 This distinction between policy decisions as embedded in the Guidelines and judicial decisions as imposed on a case-by-case basis is at work in the language of § 3553(a). . . . In § 3553(a)(2), the district court is instructed to consider "the need for the sentence imposed to reflect the seriousness of the offense," while in § 3553(a)(4), the district court is instructed to consider the sentencing range for "the applicable category of offenses" (emphasis added) as set forth in the Guidelines. The differing language between § 3553(a)(2) and § 3553(a)(4) reflects the difference between one particular defendant's crime and the large genre of offenses into which it falls. Indeed, [the difference] clearly indicates the Sentencing Commission and the district courts have two different roles with respect to the Guidelines. Castillo, 460 F.3d at 355-56. 12 1 We acknowledge the courts have not drawn a neat line 2 separating proper judicial consideration of a defendant and his 3 crime from impermissible policy judgment concerning a genre of 4 offenses, and examples may be found that blur the distinction. 5 But the logic underlying Cavera's sentence presents no such 6 challenge. 7 Cavera's crime was itself more harmful, but only that his crime 8 falls within a category of offenses (gun crimes in densely 9 populated areas) that the district court viewed as more serious, The district court does not purport to establish that 10 on average, than gun crimes in less urban communities. 11 district court improperly injected its policy views into Cavera's 12 sentence is clear to us, not because its rationale applies to 13 other offenses in the stated genre, but because its rationale 14 depends on characteristics of that genre to determine the gravity 15 of this defendant's crime. 16 That the In sum, the district court based Cavera's sentence on its 17 own public policy determination and, even though post-Booker 18 courts enjoy greater discretion in sentencing, "a district court 19 cannot import its own philosophy of sentencing if it is 20 inconsistent with the § 3553(a) factors." 21 at 132. 22 23 3. Rattoballi, 452 F.3d The District Court's Factual Argument The district court's weak support for its assessment of the 24 harmfulness of Cavera's crime cements our view that it resorted 25 to policy preferences in imposing the sentence. 26 court's central factual argument -- that injury to innocent 13 Although the 1 bystanders is more probable in crowded environments -- is sound 2 in theory, its application to New York City is unduly 3 speculative. 4 populated areas where the district court's reasoning might apply, 5 but they are also home to quieter neighborhoods, like Rockaway 6 Point in Queens and suburban areas of Staten Island, where it 7 would not apply. 8 community to draw meaningful conclusions as to the potential 9 impact of stray bullets that may someday originate from a The City's five boroughs contain many densely New York City is simply too large and varied a 10 trafficked firearm. 11 III 12 Rationale for Vacating Sentence in This Case We do not decide that consideration by a sentencing court of 13 population density or similar community-based factors is 14 impermissible in all cases. 15 233, 238 (2d Cir. 2006) (suggesting that "the special impact of 16 the offense in a particular geographical community" could be 17 relevant to sentencing).3 See United States v. Anati, 457 F.3d Nonetheless, the preceding discussion 3 For example, § 3553(a)(2)(B) requires a sentencing court to consider what sentence is necessary "to afford adequate deterrence." If a community has very strict gun laws, and it was demonstrated that the prices of illegal guns were higher there than in communities with laxer gun laws and that, as a result of the higher prices, the profits from trafficking in such guns were also higher, then it might be that penalties might also have to be greater to achieve the same level of deterrence. The district court adverted to stringent gun laws in New York. But nothing in the record demonstrated that these gun laws made the business more profitable for gun-runners. And some commentators have suggested that high prices may exist in tight control cities for reasons that do not implicate higher profits. See Philip J. Cook & Anthony A. Braga, Comprehensive Firearms Tracing: Strategic and Investigative Uses of New Data on Firearms Markets, 43 Ariz. L. Rev. 277, 297 (2001). Under the circumstances, we do not 14 1 suggests the circumstances under which a district court can base 2 a sentence on such factors in a manner that is both compatible 3 with the § 3553(a) factors and in keeping with its judicial role 4 will arise infrequently. 5 A heavy measure of caution is suggested also by several pre- 6 Booker decisions of our sister circuits. See United States v. 7 Barbontin, 907 F.2d 1494, 1498-99 (5th Cir. 1990) (reversing 8 sentence where district court considered local standards as to 9 what constituted a "significant" amount of cocaine); United 10 States v. Thomas, 906 F.2d 323, 327-28 (7th Cir. 1990) (rejecting 11 sentence based on degree of violence in city and state where 12 offense was committed); United States v. Aguilar-Pena, 887 F.2d 13 347, 351-53 (1st Cir. 1989) (reversing upward departure based on 14 high incidence of crime and insufficient law enforcement in 15 specific location and community standards); see also United 16 States v. Hadaway, 998 F.2d 917, 920-21 (11th Cir. 1993) 17 (rejecting downward departure based on finding that many local 18 residents committed the crime in question and would perceive 19 sentence as too high, while allowing judges to consider community 20 factors in sentencing within Guidelines). 21 held that a sentencing court could not depart from the Guidelines 22 on the basis of community-specific considerations. 23 24 Each of these cases These courts expressed concern that allowing departures based on such considerations would undermine the congressional believe that an appropriate basis for a higher sentence was established in the instant case. 15 1 goal of reducing sentencing disparity. See, e.g., Aguilar-Pena, 2 887 F.2d at 352-53 (stating that any regime where equally 3 blameworthy criminal received different sentences depending on 4 where crime occurred would foster the wide variations Congress 5 sought to eliminate). 6 departures should be based on case-specific considerations rather 7 than generalized disagreements with the Guidelines' treatment of 8 whole categories of offenses. 9 921 ("Downward departures based on community standards . . . The decisions emphasized in addition that See, e.g., Hadaway, 998 F.2d at 10 would apply generally to every violation of a specific federal 11 statute by any person in a particular community."); Barbontin, 12 907 F.2d at 1499 (noting that judicial dissatisfaction, "no 13 matter how steeped in real-world wisdom," is an untenable ground 14 for departures). 15 pertinent today as before Booker. We share each of these concerns and find them 16 Of course, we have recognized that, after Booker, "the 17 Guidelines limitations on the use of factors to permit departures 18 are no more binding on sentencing judges than the calculated 19 Guidelines ranges themselves." 20 191, 194 (2d Cir. 2006). 21 afforded wide latitude to impose non-Guidelines sentences based 22 on case-specific applications of the § 3553(a) factors. 23 example, in Jones, the district court had imposed a non- 24 Guidelines sentence that was 50 percent below the bottom of the 25 Guidelines range based on the judge's "gut feeling" about the 26 defendant and findings on his personal circumstances. Jones v. United States, 460 F.3d Accordingly, district judges are 16 For Id. In 1 affirming the sentence we observed that a district judge may 2 consider the defendant's background together with the judge's 3 "own sense of what is a fair and just sentence under all the 4 circumstances," thereby fulfilling his or her "historic role." 5 Id. at 195-96. 6 Read together, our cases addressing sentences outside the 7 Guidelines range make clear that Booker requires the district 8 courts to tailor sentences to reflect an application of the 9 § 3553(a) factors. See, e.g., id.; United States v. Crosby, 397 10 F.3d 103, 114 (2d Cir. 2005) (emphasizing our expectation that 11 post-Booker sentences will achieve more "individualized 12 justice"). 13 a district court to inject into sentencing decisions its policy 14 preferences with respect to the category of offense in question 15 or the kind of community in which it is perpetrated, see, e.g., 16 Castillo, 460 F.3d at 357 ("[N]othing in Booker suggests that it 17 is the task of district court judges to pronounce broad policy 18 choices rather than specific sentences based on the specific 19 facts of a case."). 20 But such individualized sentencing does not authorize Cavera's sentence is procedurally and substantively 21 unreasonable. The district court committed procedural error by 22 relying on its own policy judgment concerning all gun trafficking 23 offenses in New York and comparable cities in fixing Cavera's 24 sentence. 25 is whether the . . . imposition of a sentence that rejected the 26 100:1 ratio purely on generalized policy grounds . . . satisfies See Castillo, 460 F.3d at 354 ("[T]he question . . . 17 1 [the] standard of procedural reasonableness."). As the resulting 2 non-Guidelines sentence has not been explained by reference to 3 any properly considered § 3553(a) factor, we also deem Cavera's 4 sentence substantively unreasonable. 5 134 ("A non-Guidelines sentence that a district court imposes in 6 reliance on factors incompatible with the Commission's policy 7 statements may be deemed substantively unreasonable in the 8 absence of persuasive explanation as to why the sentence actually 9 comports with the § 3553(a) factors."). Cf. Rattoballi, 452 F.3d at 10 Because we hold that the district court's reliance on 11 improper factors renders Cavera's sentence unreasonable, we do 12 not address his contention that the district court erred by 13 failing to afford him adequate notice of its intent to impose an 14 enhanced non-Guidelines sentence. 15 16 17 IV Cavera's Other Arguments Rejected We turn now to the other two errors raised by defendant with regard to his sentence, both of which are without merit. 18 A. Refusal to Grant Downward Departure 19 We may not review Cavera's challenge to the district court's 20 refusal to grant a downward departure because the record suggests 21 neither that the district court misapprehended its authority to 22 depart nor that it imposed an illegal sentence. 23 F.3d at 114. 24 25 26 B. See Stinson, 465 Remand to Same Judge Cavera next argues that should he prevail on appeal, the case should be remanded to a different judge. 18 We grant such 1 remands only in the rarest instances. Even when a judge has 2 erroneous views or made incorrect findings, resentencing before a 3 different judge is appropriate only when the judge's fairness is 4 seriously in doubt. United States v. Bradley, 812 F.2d 774, 782 5 n.9 (2d Cir. 1987). With the exception of personal bias, we 6 examine the following three principal factors to determine if a 7 case should be remanded to a different judge: 8 original judge would reasonably be expected upon remand to have 9 substantial difficulty in putting out of his or her mind whether (1) "the 10 previously-expressed views or findings determined to be erroneous 11 or based on evidence that must be rejected," (2) "reassignment is 12 advisable to preserve the appearance of justice," and (3) 13 "reassignment would entail waste and duplication out of 14 proportion to any gain in preserving the appearance of fairness." 15 United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006). 16 With these factors in mind, we decline to remand to a different 17 judge. 18 would ignore our instructions on remand, would have difficulty 19 putting out of his mind his previously expressed views or 20 findings determined to be erroneous, or would be otherwise unfair 21 in resentencing Cavera. 22 same district court judge. 23 24 25 There is no suggestion that the district judge is biased, We therefore remand this case to the CONCLUSION For the foregoing reasons we vacate Cavera's non-Guidelines sentence and remand to the district court for resentencing in 19 1 accordance with this opinion. We affirm the district court's 2 refusal to grant Cavera a downward departure. 20

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