On October 5, 2017 the Circuit published an amended opinion in United States v. Jones, No. 15-1518 (Walker, Calabresi, Hall), which supplanted a decision issued on September 11 that we covered in an earlier blog post.  The amended decision differs from its forbearer in one key respect.  In the initial decision, Judge Calabresi authored a concurring opinion (joined in by Judge Hall) that chided the district court’s sentence, as affirmed by the Circuit, as “little short of absurd” given the defendant’s borderline IQ, old crimes, and the “timing quirks” that rendered the sentence “very, very high . . . in contrast with almost every similarly situated defendant.”  Now, in this amended opinion, the panel affirmed but still remanded “for further consideration as may be just in light of the circumstances.”

In a new footnote at the end of his concurrence, Judge Calbresi explains that the panel altered the disposition because “it was called to our attention that 28 U.S.C. § 2106 permits affirmances and remands for further proceedings in the interest of justice, and has been applied in criminal situations.” (citing, inter alia, United States v. Giuliano, 644 F.2d 85, 89 (2d Cir. 1981).   Remanding pursuant to § 2106 “may permit the district court to reconsider the sentence imposed and thereby go a long way to avoid the absurdity, which this opinion has suggested.”  After having professed in his concurrence frustration with the panel’s apparent inability to “ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure,” it appears that Judge Calabresi finally found a hook that would justify a remand and require the district court to account for those factors in fashioning a new sentence.  More importantly, he succeeded in persuading his fellow panel members that even if the sentence was correct, it still should be reexamined in the interests of justice. 

While it is hard to say that this unusual procedure will recur in many cases, it is reassuring that the court found a way to permit reconsideration of a sentence that a majority of the panel viewed as “absurd.”  It is noteworthy, however, that this is the second time in recent months—United States v. Burghardt, No. 16-949(L) is the other case—in which the Court remanded a case after affirming a sentence as reasonable but potentially excessive.  Time will tell whether the Circuit will continue to perform with vigor its role as the reasonableness reviewer of sentences.