Yet Another Time-Warp Opinion

United States v. Capanelli, Docket No. 05-3056-cr (2d Cir. Mar. 1, 2007) (Jacobs, Sack, Oberdorfer) (per curiam): This opinion follows the Rattoballi line of cases, which emphasize the continuing centrality of the Guidelines in sentencing despite Booker. The panel rejects Capanelli's claim that his sentence must be vacated as procedurally unreasonable because the district court "gave complete deference to the guidelines" at sentencing. Op. 4. Among other things, the district judge, while repeating the "of course the Guidelines are now advisory" mantra, stated that the Guidelines should be "given significant and substantial deference" at sentencing.

No problem!, this panel says, because the Guidelines range "'should serve as a 'benchmark or a point of reference or departure' for a sentencing court," (emphasis in original) and because

"A sentencing judge's decision to place special weight on the recommended guideline range will often be appropriate, because the Sentencing Guidelines reflect the considered judgment of the Sentencing Commission, are the only integration of the multiple [§ 3553(a)] factors and, with important exceptions, . . . were based upon the actual sentences of many judges."

Op. 5 (citations omitted). Let us hope, once more, that the Big Court in DC rescues us from such nonsense in Rita / Claiborne.

The opinion goes on to affirm a 5-level brandishing enhancement under § 2B3.1(b)(2)(C) of the Guidelines, describing in detail the standard for conspiratorial liability under the Guidelines. Essentially, the court must find that the "intended action [here, the brandishing of a firearm during a planned robbery] must be part of the conspiratorial plan [that the defendant generally agreed to join] for the enhancement to be imposed." Op. 11. This requires a greater showing than that required under Pinkerton (defendant liable so long as the act is a reasonably foreseeable one in furtherance of the conspiracy, even if not part of the "intended plan" to which the defendant agreed), but a court need not find that the defendant himself had a specific intent regarding the brandishing of the gun to apply the enhancement. Op. 9-11.