05-4591 (L) U.S.A. v. Cavera

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3

_______________ 4 5 August Term, 2005 6 7 (Argued May 16, 2006 Decided October 11, 2007) 8 9 Docket Nos. 05-4591-cr(L), 05-5210-cr(CON) 10 11

_______________ 12 13 United States of America, 14 15 Appellee , 16 17 v. 18 19 Gerard Cavera, aka Gerry Lake and Peter Abbadessa, 20 21 Defendants-Appellants

. 22 23

_______________ 24 25 Before: 26 CARDAMONE, CALABRESI, and POOLER, 27 Circuit Judges

. 28 29

_______________ 30 31 Defendant Gerard Cavera appeals from the judgment entered 32 August 23, 2005 in the United States District Court for the 33 Eastern District of New York (Sifton, J.), convicting him, upon 34 his guilty plea, of conspiring to deal in and transport firearms 35 in violation of 18 U.S.C. § 371. Cavera was sentenced to 24 36 months imprisonment, 3 years supervised release, a $60,000 fine, 37 and a $100 special assessment. Defendant challenges his 38 sentence, alleging the district court erred by imposing a 39 sentence above the advisory U.S. Sentencing Guidelines range of 40 12 to 18 months and in refusing to grant him a downward departure 41 on the basis of his wife's illness. He also requests that the 42 case be remanded to a different sentencing judge. 43 44 Affirmed in part, vacated in part, and remanded. 45 46

_______________ 47_______________

1 2 JEFFREY A. RABIN, Brooklyn, New York (Law Office of Jeffrey A. 3 Rabin, Brooklyn, New York, of counsel), for Defendant4 Appellant Gerard Cavera, aka Gerry Lake

. 5 6 TARYN A. MERKL, Assistant United States Attorney, Brooklyn, New 7 York (Roslynn R. Mauskopf, United States Attorney, David C. 8 James, Assistant United States Attorney, Eastern District of 9 New York, Brooklyn, New York, of counsel), for Appellee 10 United States of America

. 11 12

_______________ 13 14 Daniel A. Hochheiser, Hochheiser & Hochheiser, LLP, New York, New 15 York, filed a brief Amicus Curiae for the United States 16 District Court for the Eastern District of New York

. 171Our 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 CARDAMONE, Circuit Judge : 1 This appeal prompts us to write further on the subject of 2 federal criminal sentencing in the aftermath of United States v. 3
Booker, 543 U.S. 220 (2005). 1All agree that Bookerremoved the 4 mandatory teeth of the United States Sentencing Guidelines 5 (Guidelines) by rendering them advisory, and that Justice 6 Breyer's remedy opinion put some bite back into the Guidelines by 7 requiring courts when sentencing defendants to "consider" them. 8
See id . at 259-60. We, like our sister circuits, are still 9 putting flesh on the skeleton issue of what it means to consider 10 the Guidelines, and -- as we address specifically in this case -- 11 when and under what circumstances a district court may impose a 12 non-Guidelines sentence. 13 Defendant Gerard Cavera (defendant) appeals the August 23, 14 2005 judgment of the United States District Court for the Eastern 15 District of New York (Sifton, J.) following his conviction on a 16 guilty plea to one count of conspiring to deal in and transport 17 firearms in violation of 18 U.S.C. § 371. Although the 18 recommended Guidelines range for Cavera's offense was 12 to 18 19 months imprisonment and a fine of $3,000 to $30,000, the district 20 court imposed a non-Guidelines sentence of 24 months 213

imprisonment, three years supervised release, a $60,000 fine, and 1 a special assessment of $100. 2 On appeal Cavera maintains, and the government agrees, that 3 the district court committed legal error by considering the 4 population density of New York City in imposing a non-Guidelines 5 sentence. We appointed amicus curiae counsel to brief the 6 position taken by the district court because both parties agreed 7 that the district court sentence was imposed in error. Amicus 8 counsel's exposition of the issues was helpful to us, and we note 9 his commendable candor in advising the Court that his extensive 10 research unearthed scant judicial authority supporting the 11 district court's sentence. Cavera also contends on this appeal 12 that the district court erred by refusing him a downward 13 departure based on his wife's medical condition and urges the 14 case be remanded to a different district court judge for 15 resentencing. 16 Under the circumstances of this case, the district court's 17 reliance on the simple fact of population density to impose a 18 non-Guidelines sentence constituted legal error and rendered 19
defendant's sentence unreasonable. We must therefore vacate and 20 remand the case for resentencing, although we see no reason to 21 remand it to a different sentencing judge. Finally, the district 22 court's refusal to grant Cavera a downward departure for family 23 circumstances is not appealable. 244 FACTS AND BACKGROUND 1
A. Cavera's Personal Background 2 Cavera is over 70 years old and an army veteran. After 3 discharge from military service, he operated an auto garage 4 during the 1970s and 1980s. He retired from auto repair work in 5 1986 and eight years later went into the contracting business. 6 With a net worth of over one million dollars, Cavera is married 7 and has five adult children who live in New York State. He and 8 his wife have health problems. He has been diagnosed with gout 9 and Type II diabetes. His wife was diagnosed with breast cancer 10 in 1994. In 1995 and 1999 she suffered heart attacks and 11 continues to suffer from substantial heart problems. In 2003 her 12 breast cancer returned and she underwent a mastectomy. 13
B. Cavera's Crime 14 On April 8, 2004, two of Cavera's co-defendants, Peter 15 Abbadessa and Anthony Lucania, along with a government 16 confidential witness, traveled to Florida where Cavera lives when 17 away from New York. The confidential witness gave Lucania 18 $11,500 for the purchase of firearms. The FBI then surveilled 19 Abbadessa and Lucania as they met with Cavera at his home. While 20 there Cavera gave Abbadessa and Lucania two boxes containing 16 21 firearms. After the sale, Abbadessa and Lucania returned to New 22 York with the confidential witness. 23 On June 23, 2004, a grand jury returned an 11 count 24 indictment charging Cavera with various violations of federal gun 25 trafficking laws. On November 24, 2004, defendant plead guilty 265

to one count of conspiring to deal in and transport firearms in 1 violation of 18 U.S.C. § 371. 2
C. Cavera's Sentencing 3 At sentencing the district court calculated the Guidelines 4 range for Cavera's offense to be 12 to 18 months and a fine of 5 $3,000 to $30,000. However, the court decided to impose a non6 Guidelines sentence of 24 months imprisonment, 3 years supervised 7 release, a $60,000 fine, and a $100 special assessment. In a 21- 8 page opinion, the sentencing court explained its rationale for 9 imposing a greater non-Guidelines sentence. Looking at factor 10 (a)(2) of 18 U.S.C. § 3553, which directs the court to consider, 11 inter alia, the seriousness of the offense and the need for 12 deterrence, it reasoned that gun trafficking in an urban 13 environment like New York City requires heavier sentences. 14 United States v. Lucania , 379 F. Supp. 2d 288, 293-96 (E.D.N.Y. 15 2005). The district judge also denied a downward departure for 16 family circumstances noting that Cavera has ample financial 17 resources and five adult children to care for his ill wife. Id

. 18 at 292-93. From the resulting judgment of conviction, Cavera 19 timely appealed. 20
DISCUSSION 21 I Standard of Review 22 We review both Guidelines and non-Guidelines sentences for 23
reasonableness. United States v. Rattoballi , 452 F.3d 127, 131 24 (2d Cir. 2006). The reasonableness standard entails two 25 elements: procedural reasonableness and substantive 266

reasonableness. Id . at 131-32. To determine procedural 1 reasonableness we examine three factors: whether the district 2 court properly (a) identified the Guidelines range supported by 3 the facts found by the sentencing court, (b) treated the 4 Guidelines as advisory, and (c) considered the Guidelines 5 together with the other factors outlined in 18 U.S.C. § 3553(a). 6
Id . Substantive reasonableness depends on whether the "length of 7 the sentence is reasonable in light of the factors outlined in 18 8 U.S.C. § 3553(a)." Id . at 132. 9 Even post-Booker, we continue to review a district court's 10 interpretation of the Guidelines de novoand its findings of fact 11
for clear error. See United States v. Mejia, 461 F.3d 158, 162 12 (2d Cir. 2006). We may review a refusal to downwardly depart 13 only if the sentencing court misapprehended its authority to 14 depart "or the sentence was otherwise illegal." United States v. 15 Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per curiam). We 16 observe finally that although under our post-Booker 17 reasonableness regime we "have declined to adopt per serules, 18 opting instead to fashion a mosaic of reasonableness through 19 case-by-case adjudication," on appeal we view "as inherently 20 suspecta non-Guidelines sentence that rests primarily upon 21 factors that are not unique or personal to a particular 22
defendant." Rattoballi , 452 F.3d at 133 (emphasis added). 232This 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 infranote 3.
7 II The Non-Guidelines Sentence Based on 1 Population Density Is Unreasonable in this Case 2 3 Both Cavera and the government assert the district court's 4 non-Guidelines sentence is unreasonable. 5
A. In General 6 The crux of the district court's argument for Cavera's 7 above-Guidelines sentence is its belief that trafficking firearms 8 in urban environments threatens greater harm than trafficking in 9 less densely populated places. In explaining Cavera's sentence, 10 the district court makes no reference to any characteristic 11 particular to the defendant or his crime, but relies entirely on 12 circumstances common to all defendants charged with gun 13 trafficking in New York and similar large cities. In so doing, 14 the court seems to devise and employ a formula requiring the 15 length of sentences for gun trafficking to rise or fall with the 16 population density of the locality where the weapons are expected 17 to end up. 2 18 We emphasize our concern that the district court's 19 demographics-based approach to sentencing runs contrary to one of 20 the primary purposes of the Guidelines: to diminish unwarranted 21 sentencing disparity. Prior to the passage of the Guidelines, 22 Congress was troubled by studies showing disparate sentences 23 imposed on federal defendants who had committed similar crimes. 248

To deal with this problem, Congress enacted the Guidelines, 1 bringing nationwide uniformity to federal criminal sentences. 2
See Booker, 543 U.S. at 250 ("Congress' basic statutory goal [is] 3 a system that diminishes sentencing disparity . . . ."); 4 Rattoballi , 452 F.3d at 133-34 ("Disparate sentences prompted the 5 passage of the Sentencing Reform Act and remain its principal 6 concern."); United States v. Florez , 447 F.3d 145, 157 (2d Cir. 7 2006). Put differently, the Guidelines aim to eliminate 8 disparities in sentences meted out by different district courts 9 to defendants who commit similar offenses. Thus, under the 10 Guidelines, a defendant who commits crime "x" in Chicago will be 11 punished, all other things being equal, similarly to a defendant 12 who commits crime "x" in Savannah. Indeed one of the § 3553(a) 13 factors -- factor (a)(6) -- provides that in determining the 14 particular sentence of a defendant, the court shall consider the 15 "need to avoid unwarranted sentence disparities among defendants 16 with similar records who have been found guilty of similar 17 conduct." 18 U.S.C. § 3553(a)(6). 18 With the above in mind, it seems plain that the district 19 court's formulaic approach threatens to undermine a primary 20 purpose of the Guidelines. The trial court's reasoning would 21 result in a return to disparate sentences across districts where 22 courts fashion sentences, not on facts unique to defendants' 23 conduct or circumstances, but solely on the urban or rural 24 character of each court's geographic jurisdiction. As the 25 government correctly points out, were we to take this reasoning 269

to its logical conclusion, manifold crimes that take place in 1 urban areas would be subject to a presumption of a higher non2 Guidelines sentence; and, conversely, crimes committed in rural 3 and less populated areas would be subject to a presumption of a 4 lower non-Guidelines sentence. 5 Hence, we proceed with caution to review the district 6
court's account for Cavera's sentence. 7
B. Critique of the Support Cited by the District Court 8 For Its Decision 9 10 1. Fast-Track Programs 11 The trial court believes the congressionally authorized 12 "fast-track" programs lend support to its approach. See Lucania, 13 379 F. Supp. 2d at 297. Fast-track programs, which offer a 14 defendant a reduced sentence in exchange for a waiver of certain 15 rights, started in districts along the southwest border of the 16 United States where a high incidence of illegal re-entry cases 17 severely strained local resources. The programs were authorized 18 by Congress in § 401(m)(B) of the Prosecutorial Remedies and 19 Other Tools to End the Exploitation of Children Today Act of 20 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003). See generally 21 Mejia, 461 F.3d at 160-61 (discussing history and regulation of 22 the various fast-track programs). The district court insists 23 that any disparity resulting from its consideration of New York 24 City characteristics is "at least as well justified as the 25 disparity created by these fast-track programs." Lucania, 379 F. 26 Supp. 2d at 297. 2710 We do not think the existence or congressional sanction of 1 the fast-track programs is helpful to the district court's 2 position. Since the date of the decision below we have explained 3 that any disparity resulting from these programs is not 4
unwarranted. See Mejia, 461 F.3d at 163 ("Congress expressly 5 approved of fast-track programs without mandating them; Congress 6 thus necessarily decided that they do not create the unwarranted 7 sentencing disparities that it prohibited in Section 8 3553(a)(6)."). The participation of Congress in the 9 establishment and regulation of fast-track programs sharply 10 distinguishes such programs from the approach taken by the 11 district court. While fast-track programs forsake uniformity to 12 obtain other benefits, congressional participation ensures that 13 other goals of the Sentencing Reform Act, including transparency, 14 are preserved. SeeMichael M. O'Hear, Localization and 15 Transparency in Sentencing: Reflections on the New Early 16 Disposition Departure , 27 Hamline L. Rev. 357, 360-65, 373 (2004) 17 (noting benefits of localization, but emphasizing need for formal 18 localization mechanisms within the Guidelines to promote 19 transparency in the incorporation of local factors in 20 sentencing). 21 More fundamentally, Congress and, by proper delegation, the 22 Sentencing Commission act appropriately when they assess the 23 societal costs and benefits of punishing a category of crimes 24 prosecuted in different districts in a uniform fashion. A 25 federal court acting unilaterally is generally not in a position 2611

similarly to assess societal costs and benefits. Moreover, as 1 the Supreme Court has made clear, "[i]n our system, so far at 2 least as concerns the federal powers, defining crimes and fixing 3 penalties are legislative, not judicial, functions." United 4
States v. Evans , 333 U.S. 483, 486 (1948); see United States v. 5 Castillo , 460 F.3d 337, 356 (2d Cir. 2006). 6 2. Section 3553(a)(2) 7 We recognize that the district court rooted its non8 Guidelines sentence in a § 3553(a) factor, namely subsection 9 (a)(2), which provides that in crafting a sentence the court 10 should impose a sentence that reflects the seriousness of the 11 offense and the need for deterrence. 18 U.S.C. § 3553(a)(2). We 12 do not mean to suggest that the consideration of sentencing 13 disparity under factor (a)(6) trumps or should be given more 14 weight than considerations under factor (a)(2). See Florez , 447 15 F.3d at 158 (noting that the weight to be given any § 3553(a) 16 factor is committed to the discretion of the sentencing court and 17 beyond appellate review). Rather, we hold simply that the 18 district court erred in its analysis under factor (a)(2) by 19 sentencing Cavera on the basis of a policy judgment concerning 20 the gravity of firearms smuggling into a heavily populated area, 21 like New York City, rather than on circumstances particularto 22 the individual defendant and his crime, see Rattoballi , 452 F.3d 23 at 133. The district court's approach effectively defines a 24 separate crime -- gun trafficking in urban environments -- and 25 fixes an above-Guidelines penalty for that crime. 2612 We have cautioned the district courts against misapplying 1 their sentencing authority to make policy decisions relating to 2 an entire class of offenses. See United States v. Trupin, 475 3 F.3d 71, 76 (2d Cir. 2007) ("Sentencing policy is for Congress 4 and the Sentencing Commission, not judges."); United States v. 5 Sung Soo Park, 461 F.3d 245, 249 (2d Cir. 2006) ("[P]olicy 6 determinations concerning the relative severity of punishments 7 for particular types of offenses continue to be left to 8 Congress."); cf

. United States v. Mishoe , 241 F.3d 214, 218 (2d 9 Cir. 2001) (holding, before Booker, that departures must be based 10 on individual circumstances of defendant's case rather than on 11 general rules). Recently, we outlined the statutory basis for the 12 distinction drawn between sentences applicable to categories of 13 crimes and those properly tailored by a district judge 14 This distinction between policy decisions as 15 embedded in the Guidelines and judicial 16 decisions as imposed on a case-by-case basis 17 is at work in the language of 18 § 3553(a). . . . In § 3553(a)(2), the 19 district court is instructed to consider "the 20 need for the sentence imposed to reflect the 21 seriousness of the offense," while in 22 § 3553(a)(4), the district court is 23 instructed to consider the sentencing range 24 for "the applicable categoryof offenses" 25 (emphasis added) as set forth in the 26 Guidelines. The differing language between 27 § 3553(a)(2) and § 3553(a)(4) reflects the 28 difference between one particular defendant's 29 crime and the large genre of offenses into 30 which it falls. Indeed, [the difference] 31 clearly indicates the Sentencing Commission 32 and the district courts have two different 33 roles with respect to the Guidelines. 34 35 Castillo , 460 F.3d at 355-56. 3613 We acknowledge the courts have not drawn a neat line 1 separating proper judicial consideration of a defendant and his 2 crime from impermissible policy judgment concerning a genre of 3 offenses, and examples may be found that blur the distinction. 4 But the logic underlying Cavera's sentence presents no such 5 challenge. The district court does not purport to establish that 6 Cavera's crime was itself more harmful, but only that his crime 7 falls within a category of offenses (gun crimes in densely 8 populated areas) that the district court viewed as more serious, 9 on average, than gun crimes in less urban communities. That the 10 district court improperly injected its policy views into Cavera's 11 sentence is clear to us, not because its rationale appliesto 12 other offenses in the stated genre, but because its rationale 13 dependson characteristics of that genre to determine the gravity 14 of this defendant's crime. 15 In sum, the district court based Cavera's sentence on its 16 own public policy determination and, even though post-Booker 17 courts enjoy greater discretion in sentencing, "a district court 18 cannot import its own philosophy of sentencing if it is 19 inconsistent with the § 3553(a) factors." Rattoballi , 452 F.3d 20 at 132. 21 3. The District Court's Factual Argument 22 The district court's weak support for its assessment of the 23 harmfulness of Cavera's crime cements our view that it resorted 24 to policy preferences in imposing the sentence. Although the 25 court's central factual argument -- that injury to innocent 263For 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. SeePhilip 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 bystanders is more probable in crowded environments -- is sound 1 in theory, its application to New York City is unduly 2 speculative. The City's five boroughs contain many densely 3 populated areas where the district court's reasoning might apply, 4 but they are also home to quieter neighborhoods, like Rockaway 5 Point in Queens and suburban areas of Staten Island, where it 6 would not apply. New York City is simply too large and varied a 7 community to draw meaningful conclusions as to the potential 8 impact of stray bullets that may someday originate from a 9 trafficked firearm. 10 III Rationale for Vacating Sentence in This Case 11 We do not decide that consideration by a sentencing court of 12 population density or similar community-based factors is 13 impermissible in all cases. See United States v. Anati , 457 F.3d 14 233, 238 (2d Cir. 2006) (suggesting that "the special impact of 15 the offense in a particular geographical community" could be 16 relevant to sentencing). 3Nonetheless, the preceding discussion 17believe that an appropriate basis for a higher sentence was

established in the instant case.
15 suggests the circumstances under which a district court can base 1 a sentence on such factors in a manner that is both compatible 2 with the § 3553(a) factors and in keeping with its judicial role 3 will arise infrequently. 4 A heavy measure of caution is suggested also by several pre5
Bookerdecisions of our sister circuits. See United States v. 6 Barbontin, 907 F.2d 1494, 1498-99 (5th Cir. 1990) (reversing 7 sentence where district court considered local standards as to 8 what constituted a "significant" amount of cocaine); United 9
States v. Thomas , 906 F.2d 323, 327-28 (7th Cir. 1990) (rejecting 10 sentence based on degree of violence in city and state where 11 offense was committed); United States v. Aguilar-Pena , 887 F.2d 12 347, 351-53 (1st Cir. 1989) (reversing upward departure based on 13 high incidence of crime and insufficient law enforcement in 14 specific location and community standards); see also United 15 States v. Hadaway, 998 F.2d 917, 920-21 (11th Cir. 1993) 16 (rejecting downward departure based on finding that many local 17 residents committed the crime in question and would perceive 18 sentence as too high, while allowing judges to consider community 19 factors in sentencing within Guidelines). Each of these cases 20 held that a sentencing court could not depart from the Guidelines 21 on the basis of community-specific considerations. 22 These courts expressed concern that allowing departures 23 based on such considerations would undermine the congressional 2416

goal of reducing sentencing disparity. See , e.g. , Aguilar-Pena , 1 887 F.2d at 352-53 (stating that any regime where equally 2 blameworthy criminal received different sentences depending on 3 where crime occurred would foster the wide variations Congress 4 sought to eliminate). The decisions emphasized in addition that 5 departures should be based on case-specific considerations rather 6 than generalized disagreements with the Guidelines' treatment of 7 whole categories of offenses. See , e.g. , Hadaway, 998 F.2d at 8 921 ("Downward departures based on community standards . . . 9 would apply generallyto everyviolation of a specific federal 10 statute by anyperson in a particular community."); Barbontin, 11 907 F.2d at 1499 (noting that judicial dissatisfaction, "no 12 matter how steeped in real-world wisdom," is an untenable ground 13 for departures). We share each of these concerns and find them 14 pertinent today as before Booker

. 15 Of course, we have recognized that, after Booker, "the 16 Guidelines limitations on the use of factors to permit departures 17 are no more binding on sentencing judges than the calculated 18 Guidelines ranges themselves." Jones v. United States , 460 F.3d 19 191, 194 (2d Cir. 2006). Accordingly, district judges are 20 afforded wide latitude to impose non-Guidelines sentences based 21 on case-specific applications of the § 3553(a) factors. For 22 example, in Jones , the district court had imposed a non23 Guidelines sentence that was 50 percent below the bottom of the 24 Guidelines range based on the judge's "gut feeling" about the 25 defendant and findings on his personal circumstances. Id . In 2617

affirming the sentence we observed that a district judge may 1 consider the defendant's background together with the judge's 2 "own sense of what is a fair and just sentence under all the 3 circumstances," thereby fulfilling his or her "historic role." 4
Id . at 195-96. 5 Read together, our cases addressing sentences outside the 6 Guidelines range make clear that Bookerrequires the district 7 courts to tailor sentences to reflect an application of the 8 § 3553(a) factors. See , e.g. , id .; United States v. Crosby, 397 9 F.3d 103, 114 (2d Cir. 2005) (emphasizing our expectation that 10 post-Bookersentences will achieve more "individualized 11 justice"). But such individualized sentencing does not authorize 12 a district court to inject into sentencing decisions its policy 13 preferences with respect to the category of offense in question 14 or the kind of community in which it is perpetrated, see , e.g. , 15 Castillo , 460 F.3d at 357 ("[N]othing in Bookersuggests that it 16 is the task of district court judges to pronounce broad policy 17 choices rather than specific sentences based on the specific 18 facts of a case."). 19 Cavera's sentence is procedurally and substantively 20 unreasonable. The district court committed procedural error by 21 relying on its own policy judgment concerning all gun trafficking 22 offenses in New York and comparable cities in fixing Cavera's 23
sentence. See Castillo , 460 F.3d at 354 ("[T]he question . . . 24 is whether the . . . imposition of a sentence that rejected the 25 100:1 ratio purely on generalized policy grounds . . . satisfies 2618

[the] standard of procedural reasonableness."). As the resulting 1 non-Guidelines sentence has not been explained by reference to 2 any properly considered § 3553(a) factor, we also deem Cavera's 3 sentence substantively unreasonable. Cf

. Rattoballi , 452 F.3d at 4 134 ("A non-Guidelines sentence that a district court imposes in 5 reliance on factors incompatible with the Commission's policy 6 statements may be deemed substantively unreasonable in the 7 absence of persuasive explanation as to why the sentence actually 8 comports with the § 3553(a) factors."). 9 Because we hold that the district court's reliance on 10 improper factors renders Cavera's sentence unreasonable, we do 11 not address his contention that the district court erred by 12 failing to afford him adequate notice of its intent to impose an 13 enhanced non-Guidelines sentence. 14 IV Cavera's Other Arguments Rejected 15 We turn now to the other two errors raised by defendant with 16 regard to his sentence, both of which are without merit. 17
A. Refusal to Grant Downward Departure 18 We may not review Cavera's challenge to the district court's 19 refusal to grant a downward departure because the record suggests 20 neither that the district court misapprehended its authority to 21 depart nor that it imposed an illegal sentence. See Stinson, 465 22 F.3d at 114. 23
B. Remand to Same Judge 24 Cavera next argues that should he prevail on appeal, the 25 case should be remanded to a different judge. We grant such 2619

remands only in the rarest instances. Even when a judge has 1 erroneous views or made incorrect findings, resentencing before a 2 different judge is appropriate only when the judge's fairness is 3 seriously in doubt. United States v. Bradley, 812 F.2d 774, 782 4 n.9 (2d Cir. 1987). With the exception of personal bias, we 5 examine the following three principal factors to determine if a 6 case should be remanded to a different judge: whether (1) "the 7 original judge would reasonably be expected upon remand to have 8 substantial difficulty in putting out of his or her mind 9 previously-expressed views or findings determined to be erroneous 10 or based on evidence that must be rejected," (2) "reassignment is 11 advisable to preserve the appearance of justice," and (3) 12 "reassignment would entail waste and duplication out of 13 proportion to any gain in preserving the appearance of fairness." 14 United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006). 15 With these factors in mind, we decline to remand to a different 16 judge. There is no suggestion that the district judge is biased, 17 would ignore our instructions on remand, would have difficulty 18 putting out of his mind his previously expressed views or 19 findings determined to be erroneous, or would be otherwise unfair 20 in resentencing Cavera. We therefore remand this case to the 21 same district court judge. 22
CONCLUSION 23 For the foregoing reasons we vacate Cavera's non-Guidelines 24 sentence and remand to the district court for resentencing in 2520

accordance with this opinion. We affirm the district court's 1 refusal to grant Cavera a downward departure. 2