In Rare Ruling Vacating Sentence as Unreasonable, Second Circuit Expounds on the Role of Mercy in Sentencing

An article by Jacqueline L. Bonneau and Harry Sandick, December 20, 2017, edited by David Zapp and Johanna Zapp

In United States v. Singh, 16-1111-cr (Kearse, Hall, Chin), the Second Circuit vacated the defendant’s 60-month prison sentence—which was nearly three times the top of his Guidelines range—for illegally reentering the United States after the commission of an aggravated felony. The Court’s declaration stressed the role of mercy and the proper judicial temperament to have when approaching the sentencing process.


“The defendant was born in Guyana, but lived in the United States since he was a child.  His parents and siblings lived in the United States, as did his wife and teenage daughter.  More than twenty years ago, defendant was convicted of larceny and postal theft, which qualifies as an “aggravated felony” within the meaning of the statute criminalizing the reentry to the United States of previously removed immigrants. But between 1993 and 2014, defendant had illegally reentered the U.S. at least three times, was deported at least two times, and by the time he re-entered the country illegally for this third time, he had been convicted of at least seven other larceny-related offenses. In June 2014, arrested by the NYPD, he was charged with one count of illegal reentry into the United States.

The guilty plea and presentence report

Defendant pleaded guilty to this offense without a plea agreement.  Defendant’s Sentencing Guideline range was 15 to 21 months imprisonment. Defendant received a 3-point offense level reduction based on his acceptance of responsibility.  The Probation Office recommended that Defendant receive a within-Guidelines sentence of 21 months and the Government similarly requested a within-Guidelines sentence.

The sentencing

“Before his sentencing hearing, Defendant wrote a letter to the sentencing judge—District Judge Katherine Forrest.  In the letter Defendant admitted to his wrongdoing, blamed “Bad Friend[s] and Company” and had returned to the United States.   .   . because he “Fear[ed] for [his] life” having been beaten, threatened, and robbed in Guyana.  Defendant closed his letter by “Begging for another chance” and promising not to break the law again.

“The morning of the sentencing, Judge Forrest issued an order explaining that she was “seriously considering an upward departure” in connection with Defendant’s sentencing.  During the hearing, Judge Forrest noted that she was not inclined to grant the 3-point reduction for acceptance of responsibility, although she ultimately did grant the 3-point reduction.  She concluded, however, that an upward departure to a sentence of 60 months’ imprisonment—nearly triple the sentence the Government requested and the Guidelines recommended—was necessary to prevent Defendant’s “nearly immediate reentry.”  She also refused a request to designate Defendant to a prison in Pennsylvania that would have been relatively close to where his wife and daughter lived in the Bronx.  These types of requests are customary at sentencing, and are granted in virtually all cases.

The Law

Courts will set aside a sentence for substantive unreasonableness only in “exceptional cases.” The Court placed particular emphasis on the size of the departure from the Guideline recommendation that drastically exceeded nationwide norms in sentencing defendants for similar offenses.  Judge Forrest had imposed a sentence that was nearly three times the top of Defendant’s Guideline range, even though the Probation Office and the Government agreed that a within-Guidelines sentence was appropriate.

The panel also rejected Judge Forrest’s view of the history of criminal conduct.  None of them involved violence or narcotics trafficking.  Many of them had occurred decades ago, when Defendant was relatively young; itself a mitigating factor, and several of Defendant’s prior convictions had ended in conditional discharges, indicating that the sentencing courts did not believe that any punishment was warranted for those offenses.

The Court next turned to Judge Forrest’s factual errors. Defendant had not reentered the United States three times but two times. Defendant had not spent his life “back and forth” between the United States and Guyana. He had spent the majority of his life in the United States.  And Defendant’s criminal history was not extensive as discussed above.

The panel also rejected Judge Forrest’s conclusion that “a defendant’s acceptance of responsibility and his assertion of mitigating circumstances are inconsistent or incompatible with acceptance. ”  The Court noted that a defendant has an “absolute right” at sentencing to offer mitigating circumstances and plead for mercy without undermining his acceptance of responsibility.

Finally the Appeals Court had the opportunity to address the appropriate judicial temperament for approaching sentencing emphasizing the important role of “mercy,” “proportionality,”the ‘diverse frailties of humankind,” “compassion,’” and  “generosity of spirit.” The court closed with a quote from an article entitled, Ten Commandments for a New Judge:

“Be kind.  If we judges could possess but one attribute, it should be a kind and understanding heart.  The bench is no place for cruel or callous people, regardless of their other qualities and abilities.”

**Update in this case: on January 18, this defendant was resentenced by Judge Forrest to Time Served. By the time of his sentencing he had been incarcerated for approximately 30 months.

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