05-4591(L)

U.S.A. v. Cavera

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 _______________

5

6 August Term, 2005

7

8 (Argued May 16, 2006 Decided October 11, 2007)

9

10 Docket Nos. 05-4591-cr(L), 05-5210-cr(CON)

11

12 _______________

13

14 United States of America,

15

16 Appellee,

17

18 v.

19

20 Gerard Cavera, aka Gerry Lake and Peter Abbadessa,

21

22 Defendants-Appellants.

23

24 _______________

25

26 Before:

27 CARDAMONE, CALABRESI, and POOLER,

28 Circuit Judges.

29

30 _______________

31

32 Defendant Gerard Cavera appeals from the judgment entered

33 August 23, 2005 in the United States District Court for the

34 Eastern District of New York (Sifton, J.), convicting him, upon

35 his guilty plea, of conspiring to deal in and transport firearms

36 in violation of 18 U.S.C. § 371. Cavera was sentenced to 24

37 months imprisonment, 3 years supervised release, a $60,000 fine,

38 and a $100 special assessment. Defendant challenges his

39 sentence, alleging the district court erred by imposing a

40 sentence above the advisory U.S. Sentencing Guidelines range of

41 12 to 18 months and in refusing to grant him a downward departure

42 on the basis of his wife's illness. He also requests that the

43 case be remanded to a different sentencing judge.

44

45 Affirmed in part, vacated in part, and remanded.

46

47 _______________
1 _______________

2

3 JEFFREY A. RABIN, Brooklyn, New York (Law Office of Jeffrey A.

4 Rabin, Brooklyn, New York, of counsel), for Defendant5 Appellant Gerard Cavera, aka Gerry Lake.

6

7 TARYN A. MERKL, Assistant United States Attorney, Brooklyn, New

8 York (Roslynn R. Mauskopf, United States Attorney, David C.

9 James, Assistant United States Attorney, Eastern District of

10 New York, Brooklyn, New York, of counsel), for Appellee

11 United States of America.

12

13 _______________

14

15 Daniel A. Hochheiser, Hochheiser & Hochheiser, LLP, New York, New

16 York, filed a brief Amicus Curiae for the United States

17 District Court for the Eastern District of New York.
1 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 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.

Booker, 543 U.S. 220 (2005).1 4 All agree that Booker removed the

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. 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. Although the

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
3

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. We appointed amicus curiae counsel to brief the

7 position taken by the district court because both parties agreed

8 that the district court sentence was imposed in error. Amicus

9 counsel's exposition of the issues was helpful to us, and we note

10 his commendable candor in advising the Court that his extensive

11 research unearthed scant judicial authority supporting the

12 district court's sentence. Cavera also contends on this appeal

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 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. We must therefore vacate and

21 remand the case for resentencing, although we see no reason to

22 remand it to a different sentencing judge. Finally, the district

23 court's refusal to grant Cavera a downward departure for family

24 circumstances is not appealable.
4

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. He retired from auto repair work in

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. He and

9 his wife have health problems. He has been diagnosed with gout

10 and Type II diabetes. His wife was diagnosed with breast cancer

11 in 1994. In 1995 and 1999 she suffered heart attacks and

12 continues to suffer from substantial heart problems. In 2003 her

13 breast cancer returned and she underwent a mastectomy.

14 B. Cavera's Crime

15 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. The confidential witness gave Lucania

19 $11,500 for the purchase of firearms. The FBI then surveilled

20 Abbadessa and Lucania as they met with Cavera at his home. While

21 there Cavera gave Abbadessa and Lucania two boxes containing 16

22 firearms. After the sale, Abbadessa and Lucania returned to New

23 York with the confidential witness.

24 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
5

1 to one count of conspiring to deal in and transport firearms in

2 violation of 18 U.S.C. § 371.

3 C. Cavera's Sentencing

4 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. However, the court decided to impose a non7 Guidelines sentence of 24 months imprisonment, 3 years supervised

8 release, a $60,000 fine, and a $100 special assessment. In a 21-

9 page opinion, the sentencing court explained its rationale for

10 imposing a greater non-Guidelines sentence. Looking at factor

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). The district judge also denied a downward departure for

17 family circumstances noting that Cavera has ample financial

18 resources and five adult children to care for his ill wife. Id.

19 at 292-93. From the resulting judgment of conviction, Cavera

20 timely appealed.

21 DISCUSSION

22 I Standard of Review

23 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
6

1 reasonableness. Id. at 131-32. To determine procedural

2 reasonableness we examine three factors: whether the district

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. Substantive reasonableness depends on whether the "length of

8 the sentence is reasonable in light of the factors outlined in 18

9 U.S.C. § 3553(a)." Id. at 132.

10 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. See United States v. Mejia, 461 F.3d 158, 162

13 (2d Cir. 2006). We may review a refusal to downwardly depart

14 only if the sentencing court misapprehended its authority to

15 depart "or the sentence was otherwise illegal." United States v.

16 Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per curiam). We

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." Rattoballi, 452 F.3d at 133 (emphasis added).
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 II The Non-Guidelines Sentence Based on

2 Population Density Is Unreasonable in this Case

3

4 Both Cavera and the government assert the district court's

5 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. In explaining Cavera's sentence,

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. In so doing,

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

to end up.2 18

19 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: to diminish unwarranted

22 sentencing disparity. Prior to the passage of the Guidelines,

23 Congress was troubled by studies showing disparate sentences

24 imposed on federal defendants who had committed similar crimes. 
8

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). Put differently, the Guidelines aim to eliminate

9 disparities in sentences meted out by different district courts

10 to defendants who commit similar offenses. Thus, under the

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. Indeed one of the § 3553(a)

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." 18 U.S.C. § 3553(a)(6).

19 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. The trial court's reasoning would

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. As the

26 government correctly points out, were we to take this reasoning
9

1 to its logical conclusion, manifold crimes that take place in

2 urban areas would be subject to a presumption of a higher non3 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 Hence, we proceed with caution to review the district

7 court's account for Cavera's sentence.

8 B. Critique of the Support Cited by the District Court

9 For Its Decision

10

11 1. Fast-Track Programs

12 The trial court believes the congressionally authorized

13 "fast-track" programs lend support to its approach. See Lucania,

14 379 F. Supp. 2d at 297. Fast-track programs, which offer a

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. The programs were authorized

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). See generally

22 Mejia, 461 F.3d at 160-61 (discussing history and regulation of

23 the various fast-track programs). The district court insists

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." Lucania, 379 F.

27 Supp. 2d at 297.
10

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. Since the date of the decision below we have explained

4 that any disparity resulting from these programs is not

5 unwarranted. See Mejia, 461 F.3d at 163 ("Congress expressly

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)."). 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. While fast-track programs forsake uniformity to

13 obtain other benefits, congressional participation ensures that

14 other goals of the Sentencing Reform Act, including transparency,

15 are preserved. See Michael M. O'Hear, Localization and

16 Transparency in Sentencing: Reflections on the New Early

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 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. A

26 federal court acting unilaterally is generally not in a position
11

1 similarly to assess societal costs and benefits. Moreover, as

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." United

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 2. Section 3553(a)(2)

8 We recognize that the district court rooted its non9 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. 18 U.S.C. § 3553(a)(2). We

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). See Florez, 447

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). Rather, we hold simply that the

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. The district court's approach effectively defines a

25 separate crime -- gun trafficking in urban environments -- and

26 fixes an above-Guidelines penalty for that crime.
12

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. See United States v. Trupin, 475

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

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 This distinction between policy decisions as

16 embedded in the Guidelines and judicial

17 decisions as imposed on a case-by-case basis

18 is at work in the language of

19 § 3553(a). . . . In § 3553(a)(2), the

20 district court is instructed to consider "the

21 need for the sentence imposed to reflect the

22 seriousness of the offense," while in

23 § 3553(a)(4), the district court is

24 instructed to consider the sentencing range

25 for "the applicable category of offenses"

26 (emphasis added) as set forth in the

27 Guidelines. The differing language between

28 § 3553(a)(2) and § 3553(a)(4) reflects the

29 difference between one particular defendant's

30 crime and the large genre of offenses into

31 which it falls. Indeed, [the difference]

32 clearly indicates the Sentencing Commission

33 and the district courts have two different

34 roles with respect to the Guidelines.

35

36 Castillo, 460 F.3d at 355-56.
13

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. The district court does not purport to establish that

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,

10 on average, than gun crimes in less urban communities. That the

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 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." Rattoballi, 452 F.3d

21 at 132.

22 3. The District Court's Factual Argument

23 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. Although the

26 court's central factual argument -- that injury to innocent
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 bystanders is more probable in crowded environments -- is sound

2 in theory, its application to New York City is unduly

3 speculative. The City's five boroughs contain many densely

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. New York City is simply too large and varied a

8 community to draw meaningful conclusions as to the potential

9 impact of stray bullets that may someday originate from a

10 trafficked firearm.

11 III Rationale for Vacating Sentence in This Case

12 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. See United States v. Anati, 457 F.3d

15 233, 238 (2d Cir. 2006) (suggesting that "the special impact of

16 the offense in a particular geographical community" could be

relevant to sentencing).3 17 Nonetheless, the preceding discussion
believe that an appropriate basis for a higher sentence was

established in the instant case.

15

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 pre6 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). Each of these cases

21 held that a sentencing court could not depart from the Guidelines

22 on the basis of community-specific considerations.

23 These courts expressed concern that allowing departures

24 based on such considerations would undermine the congressional
16

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). The decisions emphasized in addition that

6 departures should be based on case-specific considerations rather

7 than generalized disagreements with the Guidelines' treatment of

8 whole categories of offenses. See, e.g., Hadaway, 998 F.2d at

9 921 ("Downward departures based on community standards . . .

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). We share each of these concerns and find them

15 pertinent today as before Booker.

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." Jones v. United States, 460 F.3d

20 191, 194 (2d Cir. 2006). Accordingly, district judges are

21 afforded wide latitude to impose non-Guidelines sentences based

22 on case-specific applications of the § 3553(a) factors. For

23 example, in Jones, the district court had imposed a non24 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. Id. In
17

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"). But such individualized sentencing does not authorize

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 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. See Castillo, 460 F.3d at 354 ("[T]he question . . .

25 is whether the . . . imposition of a sentence that rejected the

26 100:1 ratio purely on generalized policy grounds . . . satisfies
18

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. Cf. Rattoballi, 452 F.3d at

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.").

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 IV Cavera's Other Arguments Rejected

16 We turn now to the other two errors raised by defendant with

17 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. See Stinson, 465

23 F.3d at 114.

24 B. Remand to Same Judge

25 Cavera next argues that should he prevail on appeal, the

26 case should be remanded to a different judge. We grant such
19

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: whether (1) "the

8 original judge would reasonably be expected upon remand to have

9 substantial difficulty in putting out of his or her mind

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. There is no suggestion that the district judge is biased,

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. We therefore remand this case to the

22 same district court judge.

23 CONCLUSION

24 For the foregoing reasons we vacate Cavera's non-Guidelines

25 sentence and remand to the district court for resentencing in
20

1 accordance with this opinion. We affirm the district court's

2 refusal to grant Cavera a downward departure.