United States v. Dorvee

In United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), the district court committed procedural error in calculating the defendants sentence because it believed the defendants guideline sentencing range for distribution of child pornography was 262 to 327 months, when in fact the guideline sentence was the statutory maximum of 240 months, less time served. See 616 F.3d at 180-82. Moreover, in concluding the defendants sentence was also substantively unreasonable, the Second Circuit pointed out that the district court, through its explanation of the sentence, appeared to have punished him as though he already had, or would, sexually assault a child, despite medical testimony to the contrary. Id. at 185. The Second Circuit then went on to explain its concern that 2G2.2 sentencing enhancements cobbled together . . . routinely result in Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases. Id. at 186. As such, that court expressed concern that by concentrating all offenders at or near the statutory maximum, U.S.S.G. 2G2.2 eviscerates the fundamental statutory requirement in 18 U.S.C. 3553(a) that district courts consider the nature and circumstances of the offense and the history and characteristics of the defendant and violates the principle, reinforced in Gall, that courts must guard against unwarranted similarities among sentences for defendants who have been found guilty of dissimilar conduct. Id. at 187.