## Facts

- Gerard Cavera supplied firearms in Florida that were trafficked into New York City through intermediaries.
- Beginning in 2003, an FBI informant made illegal gun purchases in New York City from an intermediary who identified “Gerry” (Cavera) as the Florida supplier.
- In 2004, the informant paid $11,500 for sixteen firearms obtained through intermediaries from Cavera’s Florida residence; the informant delivered the firearms to the FBI.
- Cavera was indicted in the Eastern District of New York and pleaded guilty to conspiracy to deal in and transport firearms, in violation of 18 U.S.C. § 371, predicated on 18 U.S.C. § 922(a)(1)(A) and (5).
- The advisory Sentencing Guidelines range was 12–18 months’ imprisonment and a $3,000–$30,000 fine.
- The district court imposed an above-Guidelines sentence of 24 months’ imprisonment and a $60,000 fine, reasoning that trafficking guns into New York City increased the offense’s seriousness and the need for general deterrence; it also treated Cavera’s age as mitigating.
- A Second Circuit panel vacated the sentence as unreasonable, but the case was reheard en banc after intervening Supreme Court decisions on sentencing review.

## Issues

1. What is the proper appellate standard for reviewing sentences after Booker, including variances from the Sentencing Guidelines, in light of Gall and Kimbrough?
2. Whether an above-Guidelines sentence is substantively unreasonable when justified in part by local conditions, including the dangers and profitability of illegal gun trafficking into New York City.

## Decision

- The en banc court affirmed the judgment and upheld the 24-month prison sentence and $60,000 fine.
- It held that appellate “reasonableness” review applies an abuse-of-discretion standard and considers the totality of the circumstances with due deference to the district court.
- It held the sentence was not substantively unreasonable because the district court permissibly relied on § 3553(a) factors, including the offense’s location-specific effects and deterrence needs, and provided a reasoned, case-specific explanation.

## Legal Principles

- After Booker, the Sentencing Guidelines are advisory; sentencing courts must consider them and the factors in 18 U.S.C. § 3553(a) when selecting an appropriate sentence.
- Appellate review of sentencing decisions is for procedural error and substantive reasonableness under an abuse-of-discretion standard; courts do not apply heightened scrutiny or require “extraordinary circumstances” to justify variances.
- A district court may consider local conditions and policy-based considerations that bear on § 3553(a) (including offense circumstances and deterrence) if the explanation is individualized, adequately reasoned, and within statutory and constitutional limits.
- Substantive reasonableness review asks whether the sentence falls within a range of permissible outcomes in light of the totality of the circumstances, not whether the appellate court would have imposed a different sentence.

## Conclusion

The Second Circuit, sitting en banc, clarified that post-Booker sentencing appeals are reviewed for reasonableness under an abuse-of-discretion standard and upheld a modest upward variance where the district court reasonably explained, under § 3553(a), why trafficking firearms into New York City warranted greater punishment and deterrence.


United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc)