§716 Departures: Disparity Between Co-Defendants
6th Circuit says court is not required to consider Sentencing Commission’s statistical data. (240)(716) At defendant’s sentencing for drug trafficking, the district court declined to consider how defendant’s sentence would compare nationally to other sentences for drug trafficking, despite the admonition in 18 U.S.C. §3553(a)(6) to consider “the need to avoid unwarranted sentencing disparities.” The Sixth Circuit affirmed, holding that the district court was not required to consider the Sentencing Commission’s data before imposing sentence. U.S. v. Hymes, __ F.4th __ (6th Cir. Dec. 3, 2021) No. 20-5905.
7th Circuit rejects disparity claim where codefendant was older and already serving sentence. (240)(716) Defendants were convicted of drug trafficking. Their guidelines range was 360 months to life but the court varied downward to 262 months and 250 months. The defendant who received 262 months claimed his sentence was unfairly disparate because his codefendant had been found under § 3B1.1 to be a “leader or organizer.” The Seventh Circuit found no unwarranted disparity because the other defendant was older and was already serving a 12-year sentence. U.S. v. Gibson, __ F.3d __ (7th Cir. Apr. 30, 2021) No. 20-1236.
1st Circuit finds no disparity where defendant committed more crimes and went to trial. (716) Defendant was convictted of carjacking and firearms offenses. On appeal, he claimed that his 204-month sentence was disparate from the 93-month sentence received by his codefendant. The First Circuit rejected defendant’s claim, noting that defendant had committed more offenses than his codefendant and had gone to trial. U.S, v. Galindo-Serrano, __ F.3d __ (1st Cir. May 30, 2019) No. 18-2505.
8th Circuit rejects sentencing disparity claim. (716) Defendant was convicted of charges based on a scheme to defraud financial institutions in the Minneapolis-St. Paul metro area by cashing counterfeit checks drawn on accounts of businesses and individuals. He argued on appeal that his 144-month sentence was substantively unreasonable, contending that the district court failed to give proper weight under 18 U.S.C. § 3553(a)(6) to the need to avoid sentencing disparities among similarly situated defendants. He noted that many of his co-conspirators were sentenced to terms of three to 136 months’ imprisonment. The Eighth Circuit found no error. The statutory direction to avoid unwarranted disparities among defendants refers to national disparities, not differences among co-conspirators. Moreover, defendant did not show that he and any of his co-conspirators were similarly situated. The district court found “specifically that there [was] no unwarranted sentencing disparity,” and that 144 months was “an appropriate placement.” U.S. v. Gaye, __ F.3d __ (8th Cir. Aug. 29, 2018) No. 17-1327.
11th Circuit holds that defendant not similarly situated to co-conspirators who cooperated. (716) Defendant, a member of a gang of drug dealers, was convicted of drug trafficking, firearms possession, armed robbery and assault charges. He was sentenced to 420 months, which fell within his guideline range of 360 months to life. The Eleventh Circuit rejected defendant’s argument that the guideline sentence was substantively unreasonable. Although defendant complained that he received more than triple the sentence of other members of his gang, he was not similarly situated to them. The members who received the shortest sentences cooperated with the government, unlike defendant, who went to trial. Two other gang members who went to trial received lengthy sentences of 360 and 235 months. Moreover, defendant’s leadership role also supported a longer sentence. U.S. v. Dixon, __ F.3d __ (11th Cir. Aug. 24, 2018) No. 15-14354.
8th Circuit says sentences below guidelines for conspiracy to commit murder were not too high. (716) (742) Defendants Farah, Daud and Omar were convicted of offenses related to their participation in a conspiracy to join the foreign terrorist organization known as the Islamic State of Iraq and the Levant (ISIL). Each defendant had an offense level of 43, a criminal history of VI, and a resulting guideline sentencing range of life imprisonment. After considering the factors in 18 U.S.C. § 3553(a), the district court varied downward for each, sentencing Farah and Daud to 360 months, and Omar to 420 months. The Eighth Circuit affirmed. The statutory direction to avoid unwarranted disparities among defendants in § 3553(a)(6) refers to “national disparities, not differences among co-conspirators.” In any event, defendants were not similarly situated to their co-conspirators, who cooperated with the government and pleaded guilty to lesser charges. U.S. v. Farah, __ F.3d __ (8th Cir. Aug. 10, 2018) No. 16-4363.
6th Circuit requires court to follow correct drug weighing despite mistake with earlier defendants. (252)(716) Defendant was part of a trafficking ring that ran opiate pills from Detroit to Tennessee. Initially, the U.S. Attorney’s office mistakenly measured the weight of oxymorphone and oxycodone by the weight of the active ingredients in the pills, even though the guidelines measure oxymorphone by total weight. U.S.S.G. § 2D1.1(c), note (A)-(B). The U.S. Attorney’s Office realized the error before defendant pleaded guilty and notified him and his co-defendants about the new and proper weighing of the drugs. Defendant contended that the district court should have considered the sentence disparities between the defendants whose sentences preceded the U.S. Attorney’s Office’s change in drug-weight-calculation method and those who followed it. The Sixth Circuit rejected the argument. Once the government realized its mistake, the guidelines did not permit it to weigh oxymorphone in the old manner. This was not the kind of disparity that § 3553(a)(6) addressed. There is nothing “unwarranted” about correct sentencing calculations. U.S. v. Bradley, __ F.3d __ (6th Cir. Aug. 1, 2018) No. 17-5725.
6th Circuit finds justifiable reasons for five-year difference in co-defendant’s sentence. (716)(742) Defendant was part of a trafficking ring that ran opiate pills from Detroit to Tennessee. He argued that his 17-year guideline sentence was substantively unreasonable, even though it was less than half of his recommended guideline range. He noted that a co-defendant Buchanan received a 12-year sentence. The Sixth Circuit found no error, finding defendant’s comparison overstated Buchanan’s role and understated defendant’s role. Defendant played an instrumental role in collecting the pills, at least partly through fraudulent use of prescriptions. He owned a stash house. He recruited several people, some in desperate circumstances, to run the house and get the drugs to Buchanan. Buchanan was isolated from these more abusive and blameworthy links in the supply chain – and simply bought from his supplier and sold to redistributors, who in turn sold to end users. The five-year difference in their sentences turned on differences in their conduct. U.S. v. Bradley, __ F.3d __ (6th Cir. Aug. 1, 2018) No. 17-5725.
D.C. Circuit upholds refusal to vary downward in child porn case. (310)(716)(742) Defendant pled guilty to distributing child pornography. The district court sentenced him to 151 months, at the bottom of his 151-188 guideline range. Defendant argued for a downward variance based on the sentencing practices of other district court judges. He noted that in 2015 only 30.7% of those convicted of federal child-pornography offenses nationwide received a sentence within the guidelines range, and 67.5% were sentenced below the range. The D.C. Circuit found no procedural error in the district court’s refusal to vary downward. The judge explained how defendant’s offense, which included images of toddler and infant abuse, warranted his sentence. Also, defendant had sought to meet and sexually abuse a minor. The sentence was not based on political beliefs, even though the judge discounted recent precedents as the product of “judges who were appointed by President Obama in the last three or four years, and who have very limited experience in sentencing in these cases.” U.S. v. Mattea, __ F.3d __ (D.C. Cir. July 17, 2018) No. 16-3126.
8th Circuit finds drug co-conspirators who cooperated were not similarly situated to defendant. (716) Defendant was convicted of possession of methamphetamine. The district court calculated a guideline range of 235-240 months, and varied downward to 190 months. Defendant argued on appeal that his sentence represented an unwarranted disparity compared to his co-defendants Shipp (84 months) and Tucker (90 months). The Eighth Circuit found no sentencing disparity, because defendant and his co-conspirators were not similarly situated. The PSR found defendant responsible for a higher drug quantity than both Shipp and Tucker: 17.55 kilograms versus 5.67 kilograms for Shipp and 12.5 kilograms for Tucker. Furthermore, Tucker and Shipp were the beneficiaries of motions for downward departure due to substantial assistance. See U.S.S.G. § 5K1.1. U.S. v. Carr, __ F.3d __ (8th Cir. July 20, 2018) No. 17-2455.
8th Circuit uholds defendant’s 120-month sentence despite co-defendants’ six- and seven-month sentences. (716)(742) Defendant was convicted of firearms charges and sentenced to 120 months, at the bottom of his 120-150 month guideline range. He argued that his sentence was unreasonable in light of the six- and seven-month sentences imposed on co-defendants Marshall and Wingler. The Eighth Circuit disagreed. First, the statutory direction to avoid unwarranted sentencing disparities among defendants does not refer to differences among co-conspirators. Second, even if it did, any disparity here was warranted. The co-defendants pleaded guilty, accepted responsibility, and cooperated with the government, all of which would have warranted favorable consideration in their sentencing. U.S. v. Hemsher, __ F.3d __ (8th Cir. June 25, 2018) No. 17-50392.
1st Circuit upholds longer sentence for defendant with “main role” in scheme who held higher rank. (716)(742) Defendant and Meléndez, both U.S. Army National Guard recruiters, carried out a scheme to fraudulently procure recruitment bonuses. They were convicted of wire fraud, embezzlement and conspiracy. Defendant was sentenced to one year in prison, three years of supervised release, a $5,000 fine, and $3,000 in restitution. Meléndez was sentenced to time served (approximately two months), two years of supervised release, and $20,000 in restitution. Defendant argued that his sentence was substantively unreasonable because Meléndez, who was convicted on many more counts, received a lesser sentence. The First Circuit disagreed. It saw “no reason to second-guess the district court’s conclusion that [defendant] had the ‘main role’ in the scheme because he was ‘a higher ranking officer and the one with access to the personal and identifying information for all of the recruited … persons for which the payments were processed.'” U.S. v. Meléndez–González, __ F.3d __ (1st Cir. June 4, 2018) No. 17-1084.
7th Circuit finds sentencing disparity not unwarranted based on co-defendant’s cooperation. (716) Defendant agreed to pay kickbacks to Byrd-Bennett, the CEO of Chicago Public Schools (CPS), in exchange for obtaining lucrative contracts. Defendant was sentenced to 84 months; Byrd-Bennett was sentenced to 54 months. Defendant argued that the sentencing disparity was unwarranted and rendered his sentence substantively unreasonable. They each pled guilty to the same criminal charge, they were equal partners, and they had the same criminal history score. If anything, he argued, Byrd-Bennett, the public official, was more culpable. The Seventh Circuit affirmed the sentence. Byrd-Bennett cooperated, and defendant did not, at least in any meaningful way. Although defendant tried to cooperate, the prosecution found that actual substantial assistance came from Byrd-Bennett and another co-conspirator. Defendant waited four months after he became aware of the investigation before he tried to proffer, and even then, he was not entirely forthcoming. Moreover, defendant profited from the criminal agreement, while Byrd-Bennett never did. U.S. v. Solomon, __ F.3d __ (7th Cir. June 5, 2018) No. 17-1747.
8th Circuit finds legitimate reasons for longer bank robbery sentence. (716)(742) Defendant was convicted of conspiracy to commit bank robbery and three counts of aiding and abetting the robbery of those banks. He argued that his 210-month sentence was unreasonably long in relation to his co-defendants. His two co-defendants were each sentenced to a term of 30 months. The Eighth Circuit disagreed, noting that there were legitimate distinctions to support his longer sentence. The district court noted that defendant, who was 30 years old, not only persuaded his two co-defendants, ages 18 and 19, to commit the three bank robberies, but he furnished them with a gun, gave them instructions, sent them into banks, told them what to do and then they provided defendant with the money. The court felt that this was “actually worse than if he’d gone in by himself, where he had the gun and was in control.” Moreover, the teens pled guilty and testified at defendant’s trial. Finally, defendant’s sentence was at the low end of his applicable guideline range. The sentence was not unreasonable. U.S. v. Arnold, 835 F.3d 833 (8th Cir. 2016).
3rd Circuit affirms refusal to vary or depart downward. (716)(742) Defendant, part of a heroin distribution ring, was convicted of various federal drug and weapons charges. He argued on appeal that the district court erred by (1) treating the guidelines as mandatory; (2) failing to consider the sentence disparities between him and his co-defendants; and (3) failing to consider the §3553(a) sentencing factors. The Third Circuit rejected these arguments. First, the court’s statement that it must “abide” by the guidelines’ career offender classification did not mean that it felt bound by the guidelines. Second, the disparity with the co-defendants’ sentences was understandable given the co-defendants’ lower criminal history categories and acceptance of responsibility. As to the §3553(a) factors, the court gave careful consideration to defendant’s “difficult childhood” and reasonably concluded that a within-Guidelines sentence was warranted in light of his life of crime. U.S. v. Stevenson, __ F.3d __ (3d Cir. Aug. 9, 2016) No. 15-1942.
8th Circuit upholds sentencing disparity for abuse of trust while acting as co-defendant’s attorney. (716) (742) Defendant laundered drug proceeds he received from Lusk through his law firm, and then lied to an IRS agent about the financial arrangements. He received a below-guidelines sentence of 60 months. However, defendant argued he should have received an even shorter sentence, because other conspirators received the same or lower sentences than his. The Eighth Circuit found no abuse of discretion. The district court found defendant especially culpable for abusing the trust Lusk placed in him when he was acting as Lusk’s attorney. Early on in the investigation, the government entered into a proffer agreement with Lusk under which his statements to authorities would not be used directly against him – on condition that he told them the complete truth. Defendant advised Lusk not to say anything during his proffer session about their financial arrangement, warning Lusk that “it could ruin me.” Lusk followed this advice and thus lost the benefit of the proffer agreement. The district court properly found that defendant’s decision to put his own interests ahead of his client was “a very serious matter” and “very aggravating.” U.S. v. Boedigheimer, __ F.3d __ (8th Cir. Aug. 2, 2016) No. 15-1613.
1st Circuit finds sufficient reasons why defendant received harsher sentence than co-conspirators. (716)(742) Defendant was convicted of drug conspiracy charges, and sentenced to 170 months, within his guideline range of 151-188 months. He argued that there was an unreasonable disparity between his sentence and that of his co-conspirators, who received below-guidelines sentences of 48, 104, 120 and 120 months, respectively. The First Circuit disagreed. The most obvious explanation for the difference in sentences was that the co-conspirators all pleaded guilty and three testified against defendant, who was a principal cocaine supplier for the conspiracy. U.S. v. Ortiz-Islas, __ F.3d __ (1st Cir. July 11, 2016) No. 14-1864.
7th Circuit affirms below-guideline child porn sentence as not too high. (310)(716) Defendant pled guilty to distributing child pornography, and was sentenced to 120 months, which fell below his guideline range of 151-188 months. In his sentencing brief, he identified six child-porn offenders who had been recently sentenced, and at the hearing, he identified a seventh. He argued that the judge should avoid unwarranted sentencing disparity, but was not more specific than that. The other offenders had received sentences between 60 and 180 months based on the facts of their individual cases. The Seventh Circuit upheld defendant’s sentence. His 120-month sentence was substantially below the low end of his Guidelines range, and in the middle of the other offender’s sentences. The judge did not err in failing to explain why defendant’s sentence did not create an unwarranted disparity. U.S. v. Hancock, __ F.3d __ (7th Cir. June 3, 2016) No. 15-1779.
7th Circuit says co-conspirator’s shorter sentence did not make defendant’s sentence unreasonable. (716) Defendant was convicted of crack cocaine conspiracy charges. He argued that his sentence was unreasonably long, because it exceeded the term co-conspirator Clark received. The district court found defendant and Clark responsible for the same quantity of crack cocaine: between 840 grams and 2.4 kilograms. Clark’s sentence was lower because his criminal history score was lower and he was eligible for §5C1.2(a)’s “safety-valve” provision. The court also found that Clark was involved in the conspiracy “to a lesser degree” than defendant. Because the district court did not commit clear error in calculating the drug quantity attributable to defendant, and the resulting guidelines range differed for defendant and Clark because of the other factors, the Seventh Circuit rejected defendant’s argument that his sentence was unreasonably long. U.S. v. Brown, __ F.3d __ (7th Cir. May 13, 2016) No. 14-1363.
6th Circuit upholds tiered approach to sentencing multiple defendants as not plain error. (716)(740) Sixteen defendants, members of an Amish community, were convicted of crimes stemming from a spate of hair-cutting and beard-shearing attacks against other Amish individuals. They were convicted of multiple crimes, but their hate crimes convictions were reversed on appeal. At resentencing, the district court adopted the tiered approach it had used at the initial sentencing. The court determined sentences based on (1) the seriousness of each defendant’s conduct, (2) the decision reversing the hate crimes convictions, and (3) the prior groupings into tiers. The judge decided that two defendants’ sentences should decrease from 84 months to the newly applicable statutory maximum of 60 months. To maintain the tiers and keep proportionality between them, the court reduced the sentences of six other defendants by the same proportion: 28%. The Sixth Circuit found no plain error. A district court may choose to “determine a defendant’s sentence in light of a co-defendant’s sentence.” If the district court wishes to keep sentences among the defendants relatively fair, it is not wrong, let alone plainly wrong, to use proportions in doing so. The court did not rely solely on a mathematical formula, but expressly relied on additional factors such as the seriousness of the defendant’s conduct. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.
8th Circuit upholds same sentence for defendant and co-conspirator despite differences. (716) Defendant was convicted of charges based on his involvement in a real estate fraud scheme. He argued that the district court abused its discretion by imposing identical 42-month sentences on him and co-conspirator Nshanian. Even assuming that the statutory direction to avoid unwarranted sentence disparities referred to differences among co-conspirators rather than national disparities, the Eighth Circuit held that the sentences were reasonable. The conduct of defendant and Nshanian was similar: they formed management companies and bank accounts with their wives, signed documents that contained misrepresentations, purchased properties, and suggested the scheme to other family members. They both refused to accept responsibility and obstructed justice by testifying falsely at trial. The men even offered nearly identical mitigation evidence at sentencing. The guidelines did recommend a longer term for Nshanian based on the amount of loss, but defendant was convicted of four substantive counts versus two for Nshanian, and defendant earned more from his participation in the conspiracy than Nshanian did. The court did not abuse its discretion in finding that the similarities between the two men outweighed the differences. U.S. v. Nshanian, __ F.3d __ (8th Cir. May 4, 2016) No. 14-2715.
1st Circuit finds defendant failed to develop sentencing disparity argument. (716)) Defendant was convicted of a variety of charges based on his involvement in drug smuggling. Citing 18 U.S.C. §3553(a)(6), he argued for the first time on appeal that his 135-month guideline sentence was disproportionate to others found guilty of the same or similar conduct. The First Circuit found no plain error. Defendant failed to establish any relevant factual foundation for his argument. The lack of a developed argument in the district court was fatal to the claim. U.S. v. Perez, __ F.3d __ (1st Cir. Apr. 22, 2016) No. 15-1234.
1st Circuit says drug defendant who went to trial and furnished plane was not similar to co-conspirator who pled guilty. (716)(742) Defendant was convicted of conspiracy to import five or more kilograms of cocaine into the United States. He challenged his 235-month sentence, arguing for the first time on appeal that it was longer than the 120-month sentence of co-conspirator Nunez, who accompanied defendant on a drug smuggling flight from the Dominican Republic to Puerto Rico. The First Circuit found no error, since defendant and Nunez were not similarly situated. Nunez, unlike defendant, admitted responsibility and chose to plead guilty before trial. A co-conspirator who has elected to plead guilty is not similarly situated to a co-conspirator who has elected to stand trial. Another important difference was that defendant furnished and flew the aircraft that was used in the smuggling flight. U.S. v. Rodriguez-Milian, __ F.3d __ (1st Cir. Apr. 19, 2016) No. 14-1976.
2nd Circuit holds that below-guideline sentence was not disparate to sentences in other bribery cases. (716)(742) Defendant, a member of the New York City Council, was convicted of accepting bribes in exchange for promising access to city funding, and arranging for bribes to Republican Party officials. He argued that his 120-month sentence was unreasonable because the court “declined to consider” the two sentences imposed upon former Virginia Governor McDonnell in an unrelated bribery case. The Second Circuit found no error. Although “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” is a factor sentencing courts must consider, 18 U.S.C. §3553(a)(6), that provision does not require a district court to conform its sentence to any single other sentence adduced by a defendant. Defendant’s sentence, which fell below his guideline range of 151-188 months, was substantively reasonable. The relative length of defendant’s sentence when compared with those in certain other bribery cases was explained by aggravating factors such as defendant’s extensive perjury at trial and the fact that he participated in two separate bribery schemes. U.S. v. Halloran, __ F.3d __ (2d Cir. Apr. 28, 2016) No. 15-996-cr.
8th Circuit says sentence was not unreasonably disparate to co-conspirators’ sentences. (716) Defendant was convicted of charges related to his participation in an extortion conspiracy. He argued that his sentence was unreasonable because of the disparity between his sentence and the sentences of his co-conspirators. The Eighth Circuit rejected this claim. First, co-conspirators Dziuban and Brown were not even sentenced until after defendant, so the district court could not have considered their sentences. Second, co-conspirators Iozzo and Brown cooperated with the government and pled guilty. Defendant did not. A “sentencing difference based on one culprit’s assistance to the prosecution is legally appropriate.” U.S. v. Orlando, __ F.3d __ (8th Cir. Apr. 21, 2015) No. 15-1862.
6th Circuit says court not required to consider co-conspirator’s sentences. (716) Defendant, the office manager at a health agency, was convicted of conspiring to commit healthcare fraud. She argued that her 46-month sentence created a disparity between her and two other conspirators, Shahab and Akhtar. Akhtar’s sentence was 20 months shorter than defendant’s, yet he was “second in command under Shahab” and “received kickbacks from therapists, forged a doctor’s signature, and laundered money.” Meanwhile, Shahab was the “mastermind” as he was the owner of eight companies and defrauded Medicare of more than $18 million. Shahab, however, received a sentence of 50 months, only four months longer than defendant’s. The Sixth Circuit ruled that the district court was not required to consider defendant’s sentence in light of sentences imposed on Akhtar and Shahab. Although 18 U.S.C. §3553(a)(6) identifies “the need to avoid unwarranted sentence disparities” as a sentencing factor, that this factor concerns “national disparities between defendants with similar criminal histories convicted of similar criminal conduct—not disparities between co-defendants.” Defendant’s sentence was not unreasonable. Her 46-month sentence was below the 63-78 month range calculated by the district court. U.S. v. Mahbub, __ F.3d __ (6th Cir. Mar. 29, 2016) No. 14-1499.
8th Circuit finds ample reason for disparity between brothers’ sentences. (716)(742) Defendant and his brother were both convicted of possession with intent to distribute 50 grams or more of methamphetamine. Defendant argued his 360-month sentence was substantively unreasonable, because it was considerably longer than his brother Juan’s term of 168 months. The Eighth Circuit held that the 360-month sentence was reasonable. Even assuming that sentence disparities among co-conspirators could demonstrate unreasonableness, the district court had ample reason to treat the brothers differently. The advisory guideline sentence for defendant was longer than for Juan, due primarily to an extensive criminal history that qualified him as a career offender and his refusal to accept responsibility for his criminal conduct. Both defendants were sentenced within their advisory guideline ranges, and therefore on appeal the court would presume that the sentences were reasonable. The district court did not abuse its discretion. U.S. v. Avalos, __ F.3d __ (8th Cir. Mar. 24, 2016) No. 15-1695.
1st Circuit says sentence not “grossly disproportionate” to brother convicted of lesser charges. (716) Defendant was the “mastermind” of a Ponzi scheme he operated with his brother Jeffrey. He was sentenced 60 months on a wire fraud conspiracy count and 242 months on a bank fraud count. Jeffrey, who only pled guilty to wire fraud conspiracy, was sentenced to 48 months The First Circuit rejected defendant’s argument that his sentence was “grossly disproportionate” to the sentence given to his brother. First, and most importantly, they pled guilty to different offenses with different maximum penalties. Second, defendant “was considered the leader, organizer of the criminal activity.” Defendant admitted that Jeffrey followed his instructions and that he never even explained the business to Jeffrey. U.S. v. Reyes-Rivera, __ F.3d __ (1st Cir. Jan. 29, 2016) No. 14-1712.
11th Circuit finds disparity justified by co-defendants’ confession and acceptance of responsibility. (716)(742) Defendant, a former confidential informant, was convicted of conspiring to distribute five kilograms or more of cocaine. Under 21 U.S.C. § 960(b)(1)(B)(ii), defendant’s minimum term of imprisonment was ten years and the maximum was life. His advisory guideline range was 292-365 months, and the district court sentenced him to 360 months’ imprisonment. The Eleventh Circuit ruled that defendant failed to show that his sentence was substantively unreasonable in light of the record and the § 3553(a) factors. Although defendant argued that his sentence greatly exceeded that of his co-defendants, the co-defendants confessed their guilt and accepted responsibility. One of the co-defendants also cooperated with the government. Thus, defendant was not similarly situated to his co-defendants. U.S. v. Alvarado, __ F.3d __ (11th Cir. Dec. 11, 2015) No. 13-14843.
11th Circuit finds no “unwarranted” sentencing disparity where defendant convicted of more counts. (716)(742) Defendant, a doctor, was convicted of charges based on his involvement in a pill-mill scheme. He argued that his sentence was substantively unreasonable because the district court failed to consider the need to avoid unwarranted sentencing disparities with his co-conspirators. The Eleventh Circuit found no “unwarranted” sentencing disparity since defendant was not similarly situated to his co-conspirators. Defendant wrote the prescriptions, did the dispensing, and faced a significantly higher statutory maximum sentence. Each of his five co-defendants pled guilty to conspiracy to unlawfully dispense controlled substances, and, in exchange, the government dismissed the remaining counts against them. The statutory maximum penalty for the conspiracy charge was 5 years, whereas the statutory maximum for dispensing a Schedule II controlled substance was 20 years. In addition, defendant was convicted of more crimes than his codefendants. Also, his co-defendants accepted responsibility for their crimes, pled guilty to offenses that carried lower penalties, and cooperated with the prosecution. U.S. v. Azmat, 805 F.3d 1018 (11th Cir. 2015).
7th Circuit says sentence below guidelines range did not create unwarranted disparity. (716)(742) Defendant was caught in a government operation called Operation Blue Night, which targeted individuals involved in drug trafficking on the West Side of Chicago. He was convicted of distributing heroin and crack cocaine on five separate occasions. He argued that his 200-month sentence was unreasonable under 18 U.S.C. § 3553(a)(6) due to the disparities between the perceived strictness of his sentence compared to other criminals convicted under Operation Blue Knight. The Seventh Circuit upheld defendant’s sentence as reasonable, finding no unwarranted sentencing disparities. A sentencing disparity among similar defendants by itself is insufficient to render a particular criminal sentence unreasonable. Here, defendant’s guideline range was 360 months to life, the government recommended a range of 262-327 months, and the court sentenced him below both ranges to 200 months. Under U.S. v. Gonzalez, 765 F.3d 732, 740 (7th Cir. 2014), a sentence below the guidelines range is not an unwarranted disparity. U.S. v. Chapman, 804 F.3d 895 (7th Cir. 2015).
1st Circuit upholds 192-month sentence despite co-defendant’s 130-month sentence. (716)(742) Defendant was convicted of conspiring to import cocaine and heroin, and related charges. His guideline range was 235-297 months, but he argued that a within guidelines sentence would be unreasonable when compared to the 130-month sentence received by co-defendant Vicente-Arias. The district court found not basis to grant defendant the minor role reduction that Vicente-Arias received, but nonetheless varied downward to a 192-month sentence. The First Circuit found no unreasonable disparity with Vicente-Arias’s 130-month sentence. The guidelines are primarily concerned with minimizing disparities among defendants nationally. Moreover, defendant was not similarly situated with Vicente-Arias, who received a minor role reduction. U.S. v. Pena-Santo, __ F.3d __ (1st Cir. Oct. 14, 2015) No. 13-2155.
1st Circuit reverses where rationale for sentencing disparity was not supported. (716)(740) Defendant was one of 110 defendants involved in and convicted of charges stemming from a drug ring that operated in a public housing project. For all of the conspirators other than defendant, the sentences imposed on Count One, the drug count, ranged from 78 months to 324 months, the latter imposed on the leader of the enterprise. However, defendant received the stiffest drug sentence: 360 months. The First Circuit held that district court’s rationale for the sentencing disparity was not supported by the record. The court’s found that because defendant was closely tied to Colón de Jesus, he should be treated like him with respect to drug quantity. However, the record lacked support for the court’s finding that defendant played a larger role in the conspiracy as a manager at the housing project than the other high-level defendants played at other locations. Although defendant happened to work at the same housing project where Colón de Jesus owned the drugs, that proximity alone did not justify attributing to defendant, uniquely among defendants with similar roles in the conspiracy, the quantity of drugs calculated in each of their PSRs. U.S. v. Reyes-Santiago, __ F.3d __ (1st Cir. Sept. 23, 2015) No. 12-2381.
1st Circuit finds sentence differential justified by different criminal history category. (716) Defendant was sentenced to 360 months based on his involvement in a racketeering drug enterprise that resulted in the murder of two innocent bystanders. He argued that the sentence was unjustifiably long in comparison to those received by his co-defendants, whom he argued were more culpable generally in the RICO drug enterprise and with respect to the two murders. The First Circuit found no error. The district court considered defendant’s specific role in the context of the whole case and imposed the sentence accordingly. Defendant’s co-defendants were not similarly situated. Although they were also responsible for the killing of two innocents, his co-defendants all had a criminal history category (CHC) of I, while defendant had a CHC of II. The applicable guidelines range for CHC II was 324 to 405 months, while the applicable guidelines range for CHC I was 292 to 365. A difference in criminal history is a reasonable basis upon which to impose differing sentences. U.S. v. Graciani-Febus, __ F.3d __ (1st Cir. Aug. 28, 2015) No. 13-1793.
6th Circuit rejects disparate sentence claim where each sentence fell within guideline range. (240)(716) Defendant, a purported “pain management physician,” was convicted of conspiring to distribute a controlled substance, maintaining a drug-involved premises, and related charges. The district court imposed four consecutive life sentences. Defendant argued that the court failed to account for legitimate prescriptions in its drug quantity determination. The Sixth Circuit found any error was harmless, since defendant’s convictions for unlawful distribution leading to death, standing alone, warranted the same base offense level. See § 2D1.1(a)(2) (specifying a base offense level of 38 “if the defendant is convicted [under § 841(b)(1)(C) ] … and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance”). The panel also rejected defendant’s sentencing disparity argument. Four life sentences, one for each § 841(b)(1)(C) conviction, might appear relatively disparate. Other doctors in a similar position may have been sentenced to less lengthy terms of imprisonment. But each of defendant’s s life sentences fell within the applicable guidelines ranges. When a sentence is within-guidelines, § 3553(a)(6) is an improper vehicle for challenging that sentence. U.S. v. Volkman, __ F.3d __ (6th Cir. Aug. 14, 2015) No. 12-3212.
D.C. Circuit holds below-guidelines drug sentence was not unreasonably high. (716)(742) Defendant was a member of the Gulf Cartel, one of the largest and most infamous drug cartels in Mexico. He was convicted of conspiring to manufacture and distribute cocaine and marijuana for importation into the United States. The guidelines recommended a sentence of life imprisonment. At sentencing, the court emphasized the enormity of the threat posed by cartels and the drug trade between Mexico and the United States, as well as § 3553(a)(2)(B)’s directive to adequately deter such conduct. Nonetheless, the court imposed a below-guidelines 35-year sentence in light of the need to avoid “unwarranted sentencing disparities between [defendant] and defendants found guilty of similar crimes.” The D.C. Circuit held that the sentence was reasonable, rejecting defendant’s argument that his sentence was too severe when compared to co-conspirators who pled guilty. The judge clearly took into account the need to avoid unwarranted disparities, and offered that as the primary reason to give defendant a below-guidelines sentence. Moreover, “[b]ecause it is well established that sentences that fall within the Guidelines range are entitled to a presumption of reasonableness, it is hard to imagine how we could find [a] below-Guidelines sentence[ ] to be unreasonably high.” U.S. v. Cano-Flores, __ F.3d __ (D.C. Cir. Aug. 7 2015) No. 13-3051.
7th Circuit finds differences between co-defendants supported disparate sentences. (716) Defendant pled guilty to multiple counts of bank fraud and identity theft. He argued that the district court abused its discretion in sentencing him to a longer sentence than co-defendant Jackson, in violation of §3553(a)(6), but the Seventh Circuit found no error. Section §3553(a)(6) does not preclude sentencing disparities based on differences in conduct between co-defendants. Here, the district court explicitly addressed the need to avoid unwarranted sentencing disparities under §3553(a)(6), and determined that defendant and Jackson deserved different sentences based on their differing conduct. At sentencing, co-conspirator Foster’s testimony described defendant’s role directing all but two of the eight writers, as well as his role in recruiting them. Jackson recruited and directed only two writers. Additionally, defendant managed Foster, who in her capacity as a writer was responsible for the greatest percentage of loss. Finally, Jackson chose to cooperate with the government, while defendant did not. These differences in conduct supported disparate sentences. U.S. v. Jones, __ F.3d __ (7th Cir. July 9, 2015) No. 14-3103.
1st Circuit finds cases cited by defendant were not similar to his case. (716)(742) Defendant was convicted of Hobbs Act robbery, using a firearm during a crime of violence, and felony murder, and was sentenced to 23 years. He argued that the district court refused to consider his arguments that the sentences in similar reported cases should guide the court’s sentence in his case. The First Circuit rejected the argument, finding that the judge considered defendant’s arguments regarding § 3553(a)(6). The judge rejected defendant’s argument that his involvement was minimal: “when you decide to go in a car and attack a person that most probably is with a weapon, to take $63,000, you have to know for sure that there may be somebody killed.” The district court said enough to indicate that defendant was “not in the same camp” as defendants with minimal participation. Defendant’s sentence was not procedurally unreasonable. U.S. v. Garcia-Ortiz, __ F.3d __ (1st Cir. July 6, 2015) No. 13-1632. XE “U.S. v. Garcia-Ortiz, __ F.3d __ (1st Cir. July 6, 2015) No. 13-1632.”
7th Circuit finds no sentencing disparity where co-defendants cooperated and were not ringleaders. (716)(742) Defendant was involved in a conspiracy to commit account takeover fraud, in which he and seven co-conspirators fraudulently added themselves as authorized users on existing credit card accounts without the account holders’ knowledge or permission. The court imposed a below-guidelines sentence of 132 months, and then added the mandatory two-year consecutive sentence for the aggravated identity theft count. Defendant challenged his below-guidelines sentence as unreasonable, given the disparities between his sentence and those of his co-defendants who received no jail time. The Seventh Circuit found no unwarranted sentencing disparity. His co-defendants all cooperated with the government, offering testimony about the scheme at trial and against defendant. Such cooperation is typically rewarded with lesser sentences, and results in a warranted disparity in sentencing. Moreover, defendant was the ringleader in the scheme and initiated the illegal activity; by comparison, his co-defendants merely followed his direction. U.S. v. Harris, __ F.3d __ (7th Cir. July 1, 2015) No. 14-1846. XE “U.S. v. Harris, __ F.3d __ (7th Cir. July 1, 2015) No. 14-1846.”
8th Circuit rejects presumption of vindictiveness where co-defendants pled guilty. (716) Defendant was convicted of securities fraud and related charges. On appeal, he argued that the panel should presume that the district court sentenced him vindictively, in retaliation for his exercise of the right to a jury trial, because his 120-month sentence was longer than sentences imposed on defendants who pleaded guilty in related cases. The Eighth Circuit upheld the sentence. A presumption of vindictiveness is not warranted in cases where a defendant who is convicted after trial alleges that “similarly situated” defendants who pleaded guilty were sentenced to lesser punishment. Even where the very same person receives a greater punishment after trial than after guilty plea, there is no presumption of vindictiveness. A sentencing judge likely has more information about an offender who proceeds to trial than about a defendant who pleads guilty. Guilty pleas, since they conserve judicial and prosecutorial resources and often represent an expression of remorse and acceptance of responsibility by the defendant, provide a legitimate reason for leniency not present in the case of a defendant convicted after trial. U.S. v. Fry, __ F.3d __ (8th Cir. July 1, 2015) No. 13-3502. XE “U.S. v. Fry, __ F.3d __ (8th Cir. July 1, 2015) No. 13-3502.”
8th Circuit finds court considered need to avoid unwarranted sentencing disparities. (716) Defendant was convicted of securities fraud and related charges. He argued for the first time on appeal that the court erred by failing to consider the need to avoid unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6). The Eighth Circuit found no plain error. The district court specifically discussed the need to avoid unwarranted sentencing disparities, and even assumed that it was required to consider disparities among co-conspirators. The court explained that the amount of loss attributable to each defendant did not necessarily dictate the appropriate sentence, and concluded that the differences among sentences were not unwarranted because “there is a wide disparity here,” meaning the various defendants were situated differently. U.S. v. Fry, __ F.3d __ (8th Cir. July 1, 2015) No. 13-3502. XE “U.S. v. Fry, __ F.3d __ (8th Cir. July 1, 2015) No. 13-3502.”
11th Circuit finds no unwarranted sentencing disparity where defendant invited leniency for his wife. (716) Defendant was involved in a long-running mortgage fraud scheme. He contended that his 120-month sentence was substantively unreasonable because it was harsher than the sentences imposed on many of his co-conspirators. See 18 U.S.C. §3553(a)(6). The Eleventh Circuit found no error. First, under §3553(a)(6), a defendant who cooperates with the government and pleads guilty is not “similarly situated” to a co-defendant who proceeds to trial. Thus, only three of defendant’s co-defendants could be considered “similarly situated” to defendant. Bobka received a 180-month sentence, which was higher than defendant’s 120-month sentence. Streinz received a 60-month sentence, which was the statutory maximum for his sole count of conviction. Although defendant’s wife only received a one-year sentence, the lenient sentence was at the behest of defendant, who took full responsibility for his wife’s involvement and requested mercy for her so that she could care for their minor son. U.S. v. Cavallo, __ F.3d __ (11th Cir. June 22, 2015) No. 12-15660.
5th Circuit says sentence not unreasonable despite lighter sentence given to more co-conspirator. (716)(742) Defendants worked for an investment company operated by Stanford, who used the company to run a multi-billion dollar Ponzi scheme. Defendants actively helped Stanford hide his fraud for over a decade. The district court calculated an advisory sentence of life imprisonment, but imposed 240-month sentences. They contended that their 240-mnth sentences were substantively unreasonable, particularly in contrast to the 60-month sentence that co-conspirator Davis received. The Fifth Circuit held that the below-guidelines sentence was reasonable. Davis was not similarly situated to defendants. Defendants made much of the fact that they did not personally profit from Stanford’s scheme, while Davis, who made millions of dollars throughout the course of the scheme, received a much shorter sentence. However, Davis received a lesser sentence in exchange for pleading guilty, accepting responsibility, and testifying at multiple trials, include Stanford’s trial. The panel refused to second-guess the district court on these facts. U.S. v. Kuhrt, __ F.3d __ (5th Cir. June 5, 2015) No. 13-20115.
1st Circuit upholds sentence at bottom of advisory guideline range. (716)(742) Defendant was convicted of drug trafficking and money laundering conspiracy charges. He argued that his 168-month sentence, at the bottom of his advisory guideline range, was substantively unreasonable because it was longer than some of his more involved co-conspirators. The First Circuit held that defendant failed to carry the “heavy burden” of establishing that his within-guideline range sentence was unreasonable. The district court made clear that it had reviewed the advisory guidelines calculations, as well as all the sentencing factors in 18 U.S.C. §3553(a). After taking into consideration all the sentencing factors, the court concluded that a sentence at the lower end of the advisory guideline range was adequate. Defendant’s different view about the significance of his role in the offense, or his own weighing of the other sentencing factors, did not mean that the sentencing court’s view was unreasonable. Defendant was not entitled to a lighter sentence merely because some of his co-defendants received lighter sentences because he failed to show that they were “identically situated” to him. U.S. v. Torres-Landrua, __ F.3d __ (1st Cir. Apr. 10, 2015) No. 13-1674.
1st Circuit finds no sentencing disparity where defendants were not similarly situated. (716) Defendant and his co-defendant were arrested after a traffic stop, and both were charged with drug and firearms charges. Defendant pled guilty to the gun offense, and the government dismissed the drug count. His co-defendant pled guilty to both charges. Defendant’s recommended guideline sentence was 60 months, but the district court imposed an 84-month sentence, citing defendant’s extensive criminal history. Defendant argued that his sentence was substantively unreasonable, noting that his co-defendant, who was convicted of both charges, received a 66-month sentence. The First Circuit found no error. The district court imposed a reasonable sentence based on defendant’s individualized criminal history. The defendants were not similarly situated. Defendant had more weapons-based (and overall) convictions and arrests than did his co-defendant. This was defendant’s third firearm conviction, on top of nine other weapon charges. U.S. v. Oquendo-Garcia, __ F.3d __ (1st Cir. Apr. 9, 2015) No. 14-1368.
1st Circuit finds no error in attributing pure meth to defendant while attributing impure meth to co-conspirator. (716) The district court found, based on defendant’s PSR, that defendant was responsible for 1,789 grams of pure methamphetamine. However, it found that his co-conspirator Ortiz was responsible for 1,789 grams of impure meth. This resulted in a higher offense level for defendant. The First Circuit held that the district court did not err in treating defendant and Ortiz differently, even though Ortiz was involved in the same conspiracy involving the same drugs. Ortiz entered into a plea agreement two days before the prosecutor received the lab report detailing the purity of the methamphetamine. Defendant, by contrast, was convicted after a trial in which that evidence of purity had been introduced. Since Ortiz pled guilty, she was sentenced on the basis of a different record than defendant. U.S. v. Razo, __ F.3d __ (1st Cir. Apr. 1, 2015) No. 13-2176.
8th Circuit says court properly considered sentencing disparity with co-defendant. (716) Defendant contended that the court abused its discretion by failing to consider properly the disparity between his 168-month sentence and the 135-month sentence imposed on his co-conspirator. The Eighth Circuit disagreed. At sentencing, the court stated that it considered the need to avoid a sentencing disparity. The record showed that the court made the decision to impose the 168-month sentence based on defendant’s unique characteristics, including his pattern of escalating drug offenses and the fact that he was on probation at the time he committed the criminal act in this case. U.S. v. Gonzalez, __ F.3d __ (8th Cir. Mar. 23, 2015) No. 14-1422.
1st Circuit holds sentencing disparity was justified by difference in culpability. (716) Defendant and an accomplice pled guilty to importing cocaine into the United States. He challenged the district court’s decision to sentence him to 135 months while his accomplice received a 63-month sentence, even though both piloted the boat used to import the cocaine. The First Circuit found that the sentencing disparity was reasonably justified by the difference in culpability. The statement of facts that accompanied defendant’s plea agreement stipulated that he “captained the vessel” that transported the cocaine. Accordingly, defendant received a two-level increase under §2D1.1(b)(3)(C). His accomplice, who shared the same criminal history category, did not receive the captain enhancement, but did receive a minor role reduction under §3B1.2(b). The district court expressly found that defendant was significantly more culpable than his accomplice, pointing to his accomplice’s last-minute addition to the operation and subordinate role at sea, defendant’s arrangement for the accomplice’s participation, and defendant’s ultimate responsibility for captaining the ship (including, unlike the accomplice, knowing the rendezvous location and guiding the boat using geolocation technology). The district court did not abuse its discretion by concluding that a 135-month sentence was justified by defendant’s individual level of culpability. U.S. v. Reverol-Rivera, __ F.3d __ (1st Cir. Feb. 20, 2015) No. 12-1991.
8th Circuit finds no unwarranted sentence disparities. (716)(742) Defendant’s advisory guideline range was 360 months to life, but the district court granted him a downward variance, and sentenced him to 300 months. Defendant argued that his sentence was substantively unreasonable because he received a higher sentence than his co-conspirators, resulting in “unwarranted sentence disparities” under 18 U.S.C. §3553(a)(6). However, he named only one co-conspirator whose sentence was allegedly disparate, Sharps. However, Sharps cooperated in the prosecution and had a smaller role in the conspiracy than defendant. The only co-defendants with the same Category VI criminal history as defendant were Royals and Burks. However, Royals cooperated extensively with the government and received an acceptance of responsibility reduction and downward departure. Burks received a somewhat lower 252-month sentence, but defendant had a higher offense level because he recruited his minor son to join the conspiracy. Thus, the record did not establish any unwarranted sentence disparities. U.S. v. Maxwell, __ F.3d __ (8th Cir. Feb. 20, 2015) No. 13-2670.
6th Circuit affirms despite defendant’s claim that below-guidelines sentence was disproportionate. (716) (742) Defendant was arrested shortly after the failure of a massive drug sale to an undercover officer. He challenged the reasonableness of his 325-month sentence, claiming that it was disproportionate to those of his co-conspirators, all of whom agreed to plea bargains and cooperated with the government. The Sixth Circuit held that defendant did establish that his sentence was unreasonable. The district court imposed a below-guide-lines sentence, and such sentences are presumptively reasonable. Under 18 U.S.C. § 3533(a)(6), the district court may consider the defendant’s sentence in comparison with that of co-defendants at sentencing, but need not do so. Moreover, at defendant’s request, the district court did take into account potential disparities between co-defendants. The court found that the differences in sentences were caused primarily by the application of the sentencing guidelines, and that each sentence was justified under the statutory factors, and there was thus “fair comparability” among the sentences. Acceptance of responsibility and cooperation with the government were legitimate considerations for courts to consider when sentencing. U.S. v. Sierra-Villegas, __ F.3d __ (6th Cir. Dec. 23, 2014) No. 13-2513.
8th Circuit says confederates not prosecuted in federal court were not similarly situated to defendant. (716)(742) Defendant was convicted of being a felon in possession of a firearm, and was sentenced to 120 months. Defendant argued that his sentence should have been reduced to avoid disparities with the punishments of Hardy and Marshall, two men who were in the car with defendant when the gun was discovered. The Eighth Circuit found no abuse of discretion. Section 3553(a)(6) only applies to disparities among federal defendants. Marshall and Hardy were not prosecuted in federal court. Thus they were not similarly situated to defendant. The district court did not abuse its discretion in refusing to vary downward. U.S. v. Battle, __ F.3d __ (8th Cir. Dec. 22, 2014) No. 13-3134.
11th Circuit holds that sentencing disparity was not unwarranted. (716) Defendant argued that there was a “significant sentencing disparity” between his 172-month sentence and the 72-month sentence of his co-conspirator, Steward.Although Steward’s sentence was less than one-half of defendant’s, the Eleventh Circuit found no unwarranted sentencing disparities between them because Steward and defendant were not similarly situated. Steward cooperated with the government and entered into a plea agreement, but defendant provided no assistance and proceeded to trial. Additionally, Steward had a criminal history category of I, while defendant had a criminal history category of III. Accordingly, they were not similarly situated, and it would have been improper for the district court to have compared them. Further, the district court correctly calculated and carefully reviewed defendant’s guideline range. The district court also properly considered the other factors in 18 U.S.C. § 3553(a). U.S. v. Baldwin, __ F.3d __ (11th Cir. Dec. 17, 2014) No. 13-12973.
Supreme Court, citing Koon, orders reconsideration of disparity departure. (716) Defense counsel sought a downward departure to “equalize or regularize” defendant’s sentence in light of the sentences received by his co-conspirators. In U.S. v. Meza, 76 F.3d 117 (7th Cir. 1996), the Seventh Circuit reaffirmed circuit precedent prohibiting a district court from departing downward based on perceived disparities among co-conspirators’ sentences. The court said that defendant’s case was within the heartland and his conduct did not differ significantly from the norm. On December 18, 1996, the Supreme Court granted certiorari, summarily vacated the judgment, and remanded the case to the Seventh Circuit for further consideration in light of Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). Meza v. U.S., 519 U.S. 990, 117 S.Ct. 478 (1996).
1st Circuit says below-guideline sentence was not unreasonably high. (716) Defendant was convicted of drug conspiracy charges and sentenced to 180 months, almost seven years below the low end of his 262-327 month guideline range. He argued that the sentence was substantively unreasonable since he was sentenced to a term longer than many of his more involved co-conspirators, including the leader of the conspiracy. The First Circuit disagreed. Defendant was not similarly situated to his co-conspirators since he did not plead guilty and accept responsibility for his crimes, nor did he cooperate with the government. Taking into account defendant’s age, level of education, physical ailments, family situation, criminal history, his increasing role in the conspiracy and involvement with a firearm, his threats to murder a testifying co-conspirator, and his “utter lack of remorse,” the district court imposed a sentence seven years below his guideline range. “Such an articulated consideration of all relevant factors, coupled with a downward variance from the advisory guidelines sentencing range, clearly indicate[d] that the sentencing term [was] sufficient but no greater than necessary to achieve the purposes of the law.” U.S. v. Trinidad-Acosta, __ F.3d __ (1st Cir. Dec. 5, 2014) No. 13-1830.
1st Circuit upholds life sentence despite shorter sentences for those who pled guilty. (716) Defendant and his brother were convicted of multiple charges related to their involvement in a wide-ranging drug trafficking organization based out of two housing projects in Puerto Rico. Both received a life sentence. Defendant argued that he was less culpable than his brother, and therefore, should not have received the same life sentence. He also contended that his sentence was disproportionate to the shorter sentences imposed on co-defendants who entered into plea agreements with the government. The First Circuit upheld the life sentence. The judge stated that he considered all of the factors enumerated in 18 U.S.C. § 3553(a) in crafting defendant’s sentence. Accordingly, the panel presumed the trial judge applied § 3553(a)(6) and considered whether defendant’s life sentence was disparate as compared to other individuals with similar records and who had been convicted of similar crimes. The trial judge categorically rejected defendant’s assertion that he was “similar” to others who entered guilty pleas and, therefore, that his sentence should be commensurate with theirs. The judge did not err in reaching this conclusion. U.S. v. Ayala-Vazquez, 751 F.3d 1 (1st Cir. 2014).
1st Circuit says lower sentences for co-conspirators did not make sentence unreasonable. (716) Defendant participated in elaborate conspiracies to defraud the United States of tax revenues. He was convicted after trial and sentenced to 84 months. The court sentenced other conspirators, who did not go to trial, more leniently. Citing 18 U.S.C. § 3553(a) (6), defendant argued that his sentence was substantively unreasonable, noting that he was similarly situated to his co-conspirators, but sentenced more harshly. The First Circuit found that defendant’s premise was faulty in two respects. First, § 3553(a)(6) is concerned with the minimization of disparities among defendants nationally, rather than with disparities among co-defendants engaged in a common conspiracy. Second, district court supportably found that defendant was more culpable than his co-conspirators. It found that defendant was the mastermind of the conspiracy. An offender who sits atop a criminal hierarchy is not similarly situated to his underlings. Defendant’s guideline range was 121-151 months, and the court varied downward to 84 months. The sentence was reasonable. U.S. v. Floyd, 740 F.3d 22 (1st Cir. 2014).
1st Circuit says differences in co-defendants justified different sentences. (716) Defendant pled guilty to conspiring to distribute cocaine in a housing project, and was sentenced to 121 months, at the bottom of his 121-151 month sentencing range. He argued that the sentence was unreasonable because at least 11 of his co-defendants, including the leaders of the drug conspiracy, were sentenced to lighter sentences than he was, ranging from 46 to 108 months. In particular, the organization’s leader was sentenced to only 70 months. The First Circuit held that defendant’s sentence was reasonable. He and his co-defendants were not identically situated. Some of his co-defendants were first-time offenders, while others were convicted of possessing a smaller quantity of drugs. Still others received point reductions for the minor role they played in the offense. U.S. v. Rivera-Gonzalez, 626 F.3d 639 (1st Cir. 2010).
1st Circuit says old age, poor heath, and co-defendant’s sentence did not make sentence unreasonable. (716) Defendants Lugo and Roman challenged the substantive reasonableness of their sentences under 18 U.S.C. § 3553(a), citing their old age and poor health. Lugo separately challenged the disparity between his 210-month sentence and that of Roman, who was sentenced to 108 months. The First Circuit held that the sentences imposed here were defensible. Although Roman claimed that nine years was a very long time for someone with his health conditions, he failed to show that he could not get adequate medical care in prison. Neither did Lugo, who made the same argument. Given the severity and sophistication of their offenses, their sentences were appropriate despite their ages. In addition, Lugo’s longer sentence was justified by, among other things, the fact that he embezzled twice as much money as Roman. U.S. v. Garcia-Pastrana, 584 F.3d 351 (1st Cir. 2009).
1st Circuit says defendant’s four-year flight distinguished his case from co-conspirator’s case. (716) Defendant challenged the substantive reasonableness of his 294-month sentence, noting that there was a significant disparity between his sentence and his co-conspirator’s sentence. His co-conspirator was sentenced to a term that was 90 months shorter than defendant’s despite having been convicted of the same crimes. The First Circuit found no error. Although a district court may consider differences and similarities between co-defendants at sentencing, under 18 U.S.C. § 3553(a)(6), this section is primarily aimed at national disparities, rather than those between co-defendants. Here, the judge confronted the disparity head-on, and explicitly described the reasons that defendant and his co-defendants were not “identically situated.” There were a number of aggravating factors that were present only in defendant’s case. In particular, defendant’s extended flight from authorities for four years differentiated his case from the co-conspirator. U.S. v. Wallace, 573 F.3d 82 (1st Cir. 2009).
1st Circuit holds that co-defendants who pled guilty were not similarly situated to defendant convicted after trial. (716) Defendant argued that his 210-month sentence was unreasonable under 18 U.S.C. §3553(a)(6) in light of certain sentencing disparities between himself and what he claimed were similarly situated co-defendants. The First Circuit found that the co-defendants were not similarly situated. The key difference between defendant and the co-defendants he cited was that all of them pled guilty. A defendant who chooses to enter into a plea bargain is not similarly situated to a defendant who contests the charges against him. It was not unreasonable that defendant was sentenced to significantly more time than other members of the conspiracy who chose to plead guilty. Defendant’s sentence was at the lowest end of a guideline range that was arrived at using an extremely conservative estimate of drug quantity. U.S. v. Flores-de-Jesus, 569 F.3d 8 (1st Cir. 2009).
1st Circuit affirms harsh sentence as reasonable based on differences between defendant and his partner. (716) Defendant and an accomplice stole guns from a firearm dealer. He argued that his 10-year sentence was unreasonable, especially when compared to the 18-month sentence imposed on his partner. The First Circuit affirmed the sentence. The district court confronted the disparity head-on, noting “significant differences” between defendant and his partner. Defendant trafficked the weapons, possessed a firearm with an obliterated serial number, had a higher criminal history category, and was a “prohibited person” due to his drug use. After the robbery, the partner demonstrated remorse beyond that shown by defendant, by apologizing personally and publicly to the victim, commencing restitution payments before they were ordered, and cooperating with the prosecution. In light of these differences, the district court properly exercised its informed discretion. U.S. v. Marceau, 554 F.3d 24 (1st Cir. 2009).
1st Circuit affirms sentencing defendant to longer term than her co-defendant. (716) Defendant pled guilty to charges stemming from her role in a bank fraud conspiracy. She argued that her case should be remanded for resentencing because her co-conspirator received a total sentence of 51 months, while she received a 70-month term. The First Circuit rejected the sentencing disparity claim. Although the co-conspirator was sentenced before defendant, defendant did not raise her objection at sentencing. The district court did not plainly err in sentencing defendant to a longer term than her co-defendant because the evidence showed that defendant took the lead relative to the co-conspirator in many aspects of the scheme. Defendant recruited her cousin into the scheme, she received the targeted account information and false identifications from out-of-state co-conspirators via express mail, and she was the face of the fraud, as she impersonated the account holders and withdrew money at the bank branches. U.S. v. Jones, 551 F.3d 19 (1st Cir. 2008).
1st Circuit holds that 91-month downward deviation from guideline range was substantively reasonable. (716) Based on defendant’s status as a career offender, and after a one-level criminal history departure, defendant’s guideline range was 235-293 months. After considering the § 3355(a) factors, the court imposed a 144-month sentence, a full 91 months below the bottom of the guideline range. The court cited defendant’s close family relationships and support of his family, his strong commitment to a law-abiding life, and a desire to bring defendant’s sentence in line with other defendants involved in the drug conspiracy. The First Circuit held that the sentence was reasonable, noting that there is not a single reasonable sentence, but a range of reasonable sentences. Thus, reversal will result if, and only if, the sentencing court’s ultimate determination falls outside “the expansive boundaries of that universe.” The support of defendant’s family was a proper consideration. While U.S.S.G. § 5H1.6 generally discourages consideration of family circumstances, courts may vary from the Guidelines based solely on policy matters, including disagreements with the Guidelines. See Kimbrough v. U.S., 128 S. Ct. 558 (2007). A variance may also be based on the defendant’s potential for rehabilitation. Finally, “district courts have discretion, in appropriate cases, to align co-defendants sentences somewhat in order to reflect comparable degrees of culpability – at least in those cases where disparities are conspicuous and threaten to undermine confidence in the criminal justice system.” U.S. v. Martin, 518 F.3d 989 (1st Cir. 2008).
1st Circuit rejects 36-month probationary sentence for insider trading based on cooperating co-defendant’s lower sentence. (716) Defendant pled guilty to insider trading. Although the low end of the applicable guideline range was 37 months, the district court sentenced him to 36 months’ probation. The court cited three reasons, but its main reason was sentencing disparity. A cooperating co-defendant, Wang, who received a § 5K1.1 departure, was sentenced by a different judge to 12 months’ probation. The court thought defendant less culpable than Wang, and thus a guideline sentence was unjust. The First Circuit re-versed. The downward deviation from the guidelines’ recommended range could not be justified based on the cooperating co-defendant’s sentence. Concern with disparity among defendants is primarily a national concern, and not a concern about defendants in a particular case or court. Further, the two defendants were not similarly situated. The record did not support the court’s assessment that defendant was less culpable than Wang. Defendant was Wang’s senior and her mentor. He exploited his mentor relationship to milk maximum profit from the scheme. The court also did not give adequate weight to the fact that Wang cooperated and defendant did not. The other factors considered by the court also did not justify the variance. The fact that the SEC might order monetary penalties did not warrant a lesser sentence. The third rationale, family problems, could not, on its own, justify a departure. Some term of imprisonment is required for the sentence to be reasonable on the factors of this case. Defendant’s six months of community confinement was not the equivalent of a prison sentence. U.S. v. Tom, 504 F.3d 89 (6th Cir. 2007).
1st Circuit finds 432-month sentence for drug conspirator was reasonable, even though it was three times longer than sentence of any other conspirator. (716) Defendant argued that his 432-month sentence on the drug conspiracy count was unreasonable as a matter of law, noting that the sentence was over three times as long as that imposed on any other member of the conspiracy. The First Circuit found the sentence reasonable and adequately explained. Defendant was not similarly situated to other members of the conspiracy. One conspirator testified that she took orders from defendant and that he beat her up on a number of occasions. Other conspirators pled guilty and provided substantial assistance to the government. In addition, defendant’s criminal history was more extensive than his co-conspirators’. The court explained its reasons for the sentence, repeatedly expressing disappointment that defendant refused to take responsibility for the situation in which he found himself, and failed to express any remorse for his actions. The court wrote in its Statement of Reasons that defendant was “an unrepentant and dangerous dealer in illicit drugs and firearms.” It found a 432-month sentence “sufficient to punish [defendant] and to deter him and others from similar conduct,” while still preserving the possibility that defendant would “have some period of freedom in the sunset of his life.” U.S. v. Pierre, 484 F.3d 75 (1st Cir. 2007).
1st Circuit upholds nine-year sentence for career offender where court gave “reasoned explanation” for sentence. (716) Defendant was sentenced as a career offender based on two prior Massachusetts assault convictions. The convictions counted as felonies because they were punishable by imprisonment for a term exceeding more than one year. He argued that a sentence of less than nine years (the sentence he received) was necessary to avoid the purportedly “unwarranted sentencing disparity,” 18 U.S.C. § 3553(a) (6) between his sentence and the sentences received by defendants who are prosecuted for similar offenses in other states. The First Circuit affirmed the sentence, given the court’s “reasoned explanation” for the sentence imposed. The nine-year sentence, which was three and one half years below the bottom of the guideline range, was not unreasonably high in light of the relevant statutory factors. The court had found that the public’s need to be protected from defendant’s “demonstrably violent personality,” see 18 U.S.C. § 3553(a)(2)(C), and the need to account for his “terrible … violent record,” § 3553(a)(1) warranted a “substantial sentence.” U.S. v. Caraballo, 447 F.3d 26 (1st Cir. 2006).
1st Circuit refuses to require below-guideline sentence simply because another defendant received lesser sentence. (716) Defendant requested a below-guideline sentence based on his claim that another judge in the same district court gave a shorter sentence to another defendant who had been involved in the same criminal conduct as defendant. However, defendant conceded in the district court that his criminal record was more serious than the co-defendant. Moreover, the judge in the other case found that the co-defendant’s career offender status overstated her criminal history. While Congress did intend to reduce unwarranted disparity in sentencing for like crimes and criminals, the aim was a national uniformity, looking to how most cases of the same kind were treated. Usually little is to be learned about national uniformity by pointing to the sentence of one other defendant. “The guidelines themselves are almost certainly the best indication of ordinary practice since most sentences are within the guidelines.” Given that defendant had been regularly dealing drugs since he left the halfway house, and had been involved with drugs for virtually all of the period over the last 15 years that he had not been incarcerated, the district judge was not obliged to sentence defendant below the guideline range. U.S. v. Saez, 444 F.3d 15 (1st Cir. 2006).
1st Circuit says sentencing disparity not grounds for departure. (716) Defendant received a 151-month sentence, longer than the 121-month term imposed on each of his co-defendants. The First Circuit found no error in this disparity. First, a court cannot depart from the guidelines just to correct an asserted disparity in the sentencing of co-conspirators. Defendant’s situation was different from his two co-defendant. Both of them pled guilty and otherwise qualified for a three-level acceptance of responsibility reduction. By contrast, the district court properly found that defendant was not entitled to a like reduction, and deserved an obstruction of justice increase for perjuring himself at trial. The asserted disparity in sentencing was entirely the product of the proper application of the sentencing guidelines. U.S. v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003).
1st Circuit finds court failed to support departure from guidelines’ supervised release term. (716) Defendants claimed that their 15 and 20-year terms of supervised release were invalid because they were disproportionately longer as a percentage of their total years of imprisonment than their co-defendants’ terms. The First Circuit disagreed, since nothing in § 3742(a) allows reviews of a sentence imposed in conformity with the guidelines on the ground that a co-defendant was treated differently. U.S. v. Rios-Calderon, 80 F.3d 194 (7th Cir. 1996). However, the district court erred in another respect. Guideline § 5D1.2 states that supervised release terms for Class A or Be felonies shall be “at least three years but not more than five years.” The relevant statute, 21 U.S.C. § 841(b)(1)(A), provides for a term of supervised release of “at least five years.” In U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002), the court held that these provisions should be read together to mean that a defendant convicted under 21 U.S.C. § 841(b)(1)(A) can be sentenced to only five years of supervised release unless the judge makes a permissible upward departure from the guidelines. The judge here mistakenly concluded that the guidelines did not apply to the length of a supervised release term and thus did not give the parties notice of a possible upward departure or make the required findings of aggravated circumstances to support the departure. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit has no jurisdiction to review extent of departure designed to reduce disparity among defendants. (716) Defendant received a downward departure because the court found such a departure was needed “to provide a rough proportionality amongst the various sentences for all the participants so that this sentence, dictated by the guidelines, is not out of sync … with the other sentences, some of which have been arrived at by departures as well for other reasons.” Defendant now argued that the district court did not depart far enough because he was less culpable than other defendants who received downward departures. The First Circuit noted that it had no jurisdiction to review the extent of a departure merely because the affected defendant is dissatisfied with the quantification of the district court’s generosity. The government noted that any downward departure based solely on the perceived need “to equalize sentencing outcomes for similarly situated codefendants” is unlawful. However, since the government did not cross-appeal, this issue was not before the appellate court. U.S. v. Coviello, 225 F.3d 54 (1st Cir. 2000).
1st Circuit holds that sentencing disparity did not raise presumption of vindictiveness. (716) Defendant alleged that prosecutors were disappointed that he could not give them any useful information, and this led them to become vindictive. He alleged they misrepresented key facts and opposed any requests for leniency (such as a downward departure or a role in the offense reduction). However, the only hard fact he could point to was that certain other co-conspirators pled guilty and then received somewhat shorter sentences than he did. The First Circuit rejected the claim of prosecutorial vindictiveness. Disparity in sentencing among co-conspirators, without more, is not enough to justify a downward departure. By like token, such differentials, in and of themselves, are inadequate to raise a presumption of prosecutorial vindictiveness. U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).
1st Circuit says departure must be measured from greater of mandatory minimum or guideline range. (716) Defendants conspired to smuggle Chinese nationals into the US on a ship. All conspirators received upward departures under note 5 based on the inhumane and dangerous conditions on the ship. Defendants Li and Kwan complained that although they were the least culpable, they received disproportionately harsh departures. Li and Kwan each received sentences of 72 months, which corresponded to offense levels of 26 or 27. From this, they subtracted their total offense level of 14 to determine that they received an upward departure of 12-13 offense levels. By contrast, other conspirators received departures of only 9-10 levels. The First Circuit found this analysis flawed since defendants mistakenly used their total offense level as the starting point for calculating the departure, rather than the three-year mandatory minimum sentence under 8 U.S.C. § 1324(a)(2)(B)(ii). The proper starting point for a departure is the greater of the guideline range or the mandatory minimum. When defendant’s upward departures were measured from the 36-month mandatory minimum, it became apparent that they actually received smaller departures than other conspirators. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).
1st Circuit holds that huge sentencing disparity between co-conspirators is constitutional. (716) Defendants argued that they should be resentenced because their sentences were significantly higher than those of their co-conspirators who pled guilty rather than going to trial. They claimed that the disparity in sentences (life sentence, 260 and 235 months, compared with 17 and 60 months) was an impermissible burden on their Sixth Amendment right to a jury trial and violated the Due Process and Equal Protection clauses. The disparity was caused by the fact that the conspirators who pled guilty were only held responsible for the drugs that each had personally handled, while defendants were held accountable for all 5000 grams of crack involved in the conspiracy. The First Circuit held that the huge sentencing disparity was not unconstitutional. The fact that those who plead generally receive more lenient treatment than co-defendants who go to trial does not in and of itself constitute an unconstitutional burden on one’s right to go to trial. The government has the discretion to charge similarly situated defendants differently, unless the prosecutor discriminates on the basis of impermissible factors. Disparity between co-defendants’ sentences is not a proper ground for departure. U.S. v. Rodriguez, 162 F.3d 135 (1st Cir. 1998).
1st Circuit rejects sentencing manipulation claim where court departed downward to account for disparity. (716) Defendant, a mortgage account executive, and others submitted fraudulent loan applications to the bank’s underwriters. Although the two counts on which defendant was convicted involved no loss, she was sentenced based on related, acquitted conduct based on the court’s finding that she participated in a conspiracy that resulted in a loss of $1.46 million. After she pointed out that the loss attributed to her was substantially higher than the loss attributed to other cooperating defendants, the government recommended a downward departure on the ground that the loss figure overstated defendant’s culpability. The district court agreed and granted defendant a two-level downward departure. Defendant contended that the disparity in loss calculations violated her due process and equal protection rights because it was the result of sentencing factor manipulation. The government explained that any disparity was the result of early guilty pleas and cooperation agreements by the other defendants. The court accepted this explanation and defendant did not object. The First Circuit found no plain error. Even if defendant could prove the government improperly manipulated her loss calculation, the district court’s downward departure remedied her grievance. The extent of the departure was not reviewable. U.S. v. Graham, 146 F.3d 6 (1st Cir. 1998).
1st Circuit rejects disparate sentence claim. (716) Defendant complained that he received a substantially heavier sentence than his co-defendant. The First Circuit found the disparity of no consequence, since the guidelines were applied properly. The co-defendant pled guilty. In contrast, defendant was sentenced “against the full backdrop of a full trial record that exposed in sharp focus the complete extent of his criminal behavior.” U.S. v. Rodriguez, 63 F.3d 1159 (1st Cir. 1995).
1st Circuit attributes more drugs to defendant than co-conspirator who received immunity for one sale. (716) Defendant claimed that he should held responsible for the same quantity of cocaine as a cooperating co-conspirator, because they both participated in the same transactions. Defendant was held accountable for an additional transaction involving seven ounces of crack. The First Circuit affirmed, since the witness was immunized from having the crack transaction count towards his sentence. Evidence of the crack transaction first surfaced during the witness’s debriefing by police. The witness obtained a written promise from the government that none of the information he provided would be used against him. Under § 1B1.8(a), this promise immunized the witness from having the crack transaction count toward his sentence. However, defendant was not entitled to the same immunity. U.S. v. Webster, 54 F.3d 1 (1st Cir. 1995).
1st Circuit rejects disparity between co-conspirators as basis for downward departure. (716) Defendant argued that the comparative severity of his sentence as contrasted with the sentences of his co-conspirators justified a downward departure. The 1st Circuit held that the district court lacked authority to depart for this reason. U.S. v. Pierro, 32 F.3d 611 (1st Cir. 1994).
1st Circuit rejects challenge based on sentencing disparity. (716) The 1st Circuit rejected defendant’s claim that his sentence was disproportionately severe when compared with the sentences of similarly situated defendants. First, defendant was treated similarly to those co-defendants who pled guilty to the same conspiracy charge. Second, no co-defendant received a downward departure. Finally, “a perceived need to equalize sentencing outcomes for similarly situated co-defendants, without more, will not permit a departure from a properly calculated guideline sentencing range.” U.S. v. Mena-Robles, 4 F.3d 1026 (1st Cir. 1993).
1st Circuit refuses to review sentence within guideline range despite departure for co-defendant. (716) Defendant contended that the district court abused its discretion in sentencing him to the high end of his guideline range while departing downward in sentencing his co-defendant. The 1st Circuit held that it lacked jurisdiction to review the sentence since it was within the applicable guideline range. U.S. v. Brennan, 994 F.2d 918 (1st Cir. 1993).
1st Circuit upholds longer sentence for employee of shop in which cocaine was sold. (716) Defendant was convicted of drug offenses as a result of his participation in drug sales which took place in the shop where he was employed. The 1st Circuit rejected the argument that his 55-month sentence was excessive even though the owner of the shop only received a 33-month sentence. The owner of the shop, unlike defendant, accepted responsibility, did not obstruct justice, and did not have a lengthy past criminal record. These factors accounted for the difference in sentence. Defendant’s sentence was lawful under the guidelines. The fact that a co-defendant received a different sentence does not provide a basis in law for setting aside defendant’s sentence. U.S. v. Torres, 960 F.2d 226 (1st Cir. 1992).
1st Circuit refuses to review claim that court vindictively sentenced defendant at top of range. (716) Defendant asserted that the district court improperly sentenced him in the upper part of the guideline range, while his co-conspirator, who had a larger role in the conspiracy, received a sentence in the middle of the range. Defendant contended that the trial court improperly treated him more harshly because he chose to stand trial while his co-conspirator pled guilty. The 1st Circuit refused to review the issue, finding it had no jurisdiction to review a sentence within the proper guideline range. U.S. v. Panet-Collazo, 960 F.2d 256 (1st Cir. 1992).
1st Circuit rejects downward departure to correct disparate sentences based on prosecutor’s charging decision. (716) Defendant, a police officer, was convicted of RICO and Hobbs Act offenses as a result of his participation in a payoff scheme involving local prostitutes. His partner, who also participated in the scheme, was only charged with perjury in connection with the grand jury investigation of the scheme. Defendant received a 30 month sentence while his partner received an 18 month sentence. The 1st Circuit rejected defendant’s contention that the district court should have departed downward to correct for the alleged prosecutorial impropriety in the framing of the indictment. A perceived need to equalize sentences among similarly situated defendants is not a ground for a downward departure. The case is stronger here where defendant and his partner were charged with and convicted of different crimes, and thus were not similarly situated. U.S. v. Butt, 955 F.2d 77 (1st Cir. 1992).
1st Circuit finds no disparity in enhancing defendant’s sentence for possession of firearm. (716) Police recovered a loaded pistol and a quantity of drugs from defendant’s residence. The 1st Circuit found no “unjustifiably wide” sentencing disparity in giving defendant, but not his two co-defendants, an enhancement under guideline section 2D1.1(b) for possession of a firearm during a drug trafficking crime. Defendant, unlike his partners, lived in the apartment, which permitted the district court to conclude that he was in constructive possession of the weapon, whether or not he owned it. U.S. v. Font-Ramirez, 944 F.2d 42 (1st Cir. 1991).
1st Circuit reverses downward departure intended to bring parity to co-defendants’ sentence. (716) Defendant and his co-defendant were equal partners in a drug distribution scheme. The co-defendant was sentenced first, and due to the government’s “slipshod” effort to build a record, the judge was only able to find the co-defendant accountable for 10.19 grams of heroin. Accordingly, the co-defendant received a 27-month sentence, which was at the top of his applicable guideline range. At defendant’s sentencing hearing, the government was able to build an adequate record, and the sentencing judge found that 755.75 grams were involved in the scheme. This resulted in a guideline range of 87 to 108 months. However, in order to avoid disparity between co-defendants who had essentially the same role in the offense, the district court departed downward and sentenced defendant to 27 months. The 1st Circuit reversed, since under Circuit precedent, “the perceived need to equalize sentencing outcomes for similarly situated co-defendants, with-out more, will not permit a departure from a properly calculated guideline sentencing range.” U.S. v. Wogan, 938 F.2d 1446 (1st Cir. 1991).
1st Circuit cannot review whether defendants’ sentences were imposed in retaliation for exercising right to trial where sentences were within applicable guideline range. (716) Defendants were convicted by a jury of aiding and abetting each other in the distribution of more than 5,000 grams of cocaine. One was sentenced to 150 months and the other was sentenced to 84 months. A codefendant who pled guilty received a downward departure based upon substantial assistance to the government and received a sentence of 30 months. Defendants argued that their sentences were imposed in retaliation for exercising their right to a jury trial. Both sentences were within the applicable guidelines range, and the 1st Circuit held that it had no appellate jurisdiction to consider a sentence within the applicable guideline range. U.S. v. Vega-Encarnacion, 914 F.2d 20 (1st Cir. 1990).
2nd Circuit affirms upward variance in internet gambling case. (716) Defendant pled guilty to conspiracy to violate the Unlawful Internet Gambling Enforcement Act, bank fraud and wire fraud, and money laundering. His guideline range was 18-24 months, but the district court varied upward to 36 months. The Second Circuit held that the district court adequately justified the upward variance. The court explained that the nature of the offense was particularly reprehensible, and felt that defendant had a strong likelihood of recidivism in light of his extensive criminal past and string of fraudulent conduct for more than 30 years. The court specifically found that defendant’s offenses were “brazen, quite deliberate, and deceptive,” and that defendant was “an unreformed con man and fraudster” who would “cook up some new scheme” upon his release from incarceration. The sentence was substantively reasonable. Although it was twice as long as that imposed on any other co-conspirator, defendant was not similarly situated to his co-conspirators. His co-defendants did not have his lengthy criminal records. Defendant also played a central role in the fraud and money laundering conspiracies. U.S. v. Rubin, 743 F.3d 31 (2d Cir. 2014).
2nd Circuit holds sentence was substantively reasonable despite lesser sentences of co-defendants. (716) Defendant, a broker, several other brokers, and several officers of a public company, were convicted of conspiracy to commit securities fraud, wire fraud, and commercial bribery. Defendant argued that his sentence was unreasonable because all of his co-defendants, and in particular brokers Lustig and Serrano, who he contended were similarly situated, received below-guidelines sentences. The Second Circuit rejected the claim. There was no reason to believe the district court did not consider the need to avoid unwarranted disparities among similarly-situated defendants. The court expressly considered the question and found that the co-defendants were not similarly situated. Both Lustig and Serrano had admitted that what they did was wrong and illegal, and they apologized to the victims, whereas defendant had not. There was no merit to defendant’s claim that his sentence was not substantively reasonable. U.S. v. Nouri, 711 F.3d 129 (2d Cir. 2013).
2nd Circuit holds that sentencing disparity was not unwarranted. (716) Defendant argued that the district committed plain error because his sentence created an unwarranted disparity between him and each of his co-defendants. The Second Circuit rejected this argument, since the sentencing disparities here were not unwarranted. Unlike defendant, his co-defendants either (1) pleaded guilty pursuant to a plea agreement, (2) pleaded guilty to conspiracy to distribute heroin but not conspiracy to launder money, (3) pleaded guilty to conspiracy to launder money but not to conspiracy to distribute heroin, or (4) were exceptionally honest in admitting to the crimes, and brought to the court’s attention unique facts, such as HIV-positive status and a resulting reduced risk of recidivism. U.S. v. Menendez, 600 F.3d 263 (2d Cir. 2010).
2nd Circuit says court need not compare defendant’s sentence to Commission’s statistics. (716) Defendant was convicted of traveling outside the U.S. for the purpose of engaging in sexual acts with minors, and child pornography charges. He challenged his 262-month sentence, arguing that the court erred in failing to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of the similar conduct.” 18 U.S.C. § 3553(a)(6). He argued that the district court was required to consider “statistics kept by the Sentencing Commission regarding sentences imposed locally and nationally on similarly situated offenders.” The Second Circuit upheld the guideline sentence, finding the district court was not required to consult the statistics provided by defendant. These statistics did not distinguish between defendants who committed crimes of sexual abuse against children and those who committed such crimes against adults. More importantly, concern about unwarranted disparities “is at a minimum when a sentence is within the Guidelines range.” U.S. v. Irving, 554 F.3d 64 (2d Cir. 2009).
2nd Circuit finds no sentencing disparity where co-defendant was “passive recipient” of inside information. (716) Defendant operated a website that gave investment advice. He obtained misappropriated information for a co-defendant who worked for the FBI, and used the information to recommend short sales and made other market manipulations. He was sentenced to 135 months, but argued that there was an “unwarranted disparity” between his sentence and that of his co-conspirator, Daws, who received probation and a fine. The Second Circuit found no improper sentencing disparity. Daws was a passive recipient of the information obtained by defendant, and defendant, unlike Daws, was convicted of extortion and of committing a crime while on pretrial release. U.S. v. Royer, 549 F.3d 886 (2d Cir. 2008).
2nd Circuit rejects variance based on likely deportation and disparity with co-defendants who were not similarly situated to defendant. (716) Defendant and seven co-defendants were convicted of cocaine and crack distribution and conspiracy charges. In sentencing defendant below the advisory guideline range of 292-365 months, the court noted that defendant would be deported immediately after his prison sentence was served, and that the longest sentence imposed on his co-defendants was 96 months. The Second Circuit reversed, holding that the court did not properly apply the statutory factors listed in 18 U.S.C. § 3553(a). Defendant’s likely deportation following his imprisonment was not relevant under § 3553(a)(2)(C), which requires a court to consider the need for the sentence imposed to protect the public from further crimes of the defendant. The panel also reaffirmed U.S. v. Restrepo, 999 F.2d 640 (2d Cir. 1993), which held that deportation is not an “additional punishment” imposed on a defendant. It is unclear whether § 3553(a)(6) permits the consideration of co-defendant disparity rather than disparity among defendants nationwide. Even if the provision permits the consideration of defendant’s sentence in relation to those of his co-defendants, the court still erred because he provided no assessment of how defendant was similarly situated to his co-defendants and why that would matter in light of their differences. Defendant was convicted of being a leader of the conspiracy; his co-defendants were not. Defendant did not cooperate with the prosecution; his co-defendants did. U.S. v. Wills, 476 F.3d 103 (2d Cir. 2007).
2nd Circuit holds that 25-year sentence for CEO involved in securities fraud was reasonable. (716) Defendant was the Chief Executive Officer of WorldCom, Inc, a publicly traded global telecommunications company. He engineered a scheme to disguise WorldCom’s declining operating performance by falsifying its financial reports. The Second Circuit upheld his 25-year sentence. Although co-defendants received much shorter sentences, the disparity was based on the varying degrees of culpability and cooperation between the various defendants. All of the co-conspirators cited by defendant cooperated and pled guilty, defendant did not. Moreover, each was a subordinate of defendant. Defendant, as CEO, had primary responsibility for the fraud. The 25-year sentence for the white-collar crime was reasonable, although it was longer than the sentences routinely imposed by many states for violent or serious crimes. The sentence was actually below the guideline level. The guidelines reflect Congress’ judgment as to the appropriate national policy for such crimes. Moreover, the securities fraud here was not puffery or even a misguided attempt to protect the company’s shareholders from a temporary downturn in business. Rather, the fraud was motivated by defendant’s personal financial circumstances. U.S. v. Ebbers, 458 F.3d 110 (2d Cir. 2006).
2nd Circuit says court is not required to depart for good time credit defendant might have earned if incarcerated in the U.S. (716) Defendant pled guilty to conspiring to import ecstasy into the U.S. and received a sentence of 162 months’ imprisonment. The court departed downward by 26 months, the length of defendant’s imprisonment in Belgium, pursuant to U.S.S.G. § 5K2.23, which permits departures for “discharged terms of imprisonment.” Defendant argued that because the federal statute governing good time credit permits the Bureau of Prisons to award inmates up to 54 days of good time credit at the end of each year of imprisonment, the district court’s downward departure should have included all of the good time credit defendant might have earned had he served his 26-month Belgian sentence in federal prison. The amount of good time credit earned by a defendant is determined by the BOP based on a prisoner’s behavior while incarcerated in a BOP controlled environment. Because defendant was previously incarcerated in a foreign jail, the Second Circuit ruled that the district court did not abuse its discretion in denying a downward departure on the basis of defendant’s speculative assertion that he would have earned good time credit in a BOP prison had he served his time in such a facility. The court also rejected defendant’s argument that the district court should have reduced defendant’s sentence to ensure that it was commensurate with a co-defendant’s probable sentence under Belgian law. The district court did not abuse its discretion when it declined to depart on the basis of defendant’s wholly speculative argument that a foreign sovereign might sentence his co-defendant to a lesser sentence than would generally be warranted under the guidelines. U.S. v. Hilario, 449 F.3d 500 (2d Cir. 2006).
2nd Circuit upholds refusal to depart based on alleged sentencing disparity. (716) In rejecting defendant’s request for a downward departure based on sentencing disparity, the district court stated “I don’t read the Tejado case as indicating that I have no authority to depart. Clearly I could depart.” Further, “even though the Court has the power to depart, based upon disparity, and other factors, or disparity unto itself, if it’s really extraordinary, I don’t think it’s appropriate in this case.” Because a district court’s exercise of its assumed discretion to deny a departure is not appealable, the Second Circuit dismissed defendant’s appeal for lack of jurisdiction. However, it noted that the district court erred insofar as its stated it had the authority to depart based on differences between the sentences applicable to defendant and his co-defendant, given that the disparity resulted from the plea bargaining process and was not unconstitutional. The lack of authority to depart in such a circumstances is well established. Thus, even if the court had denied defendant’s motion for a downward departure based on a sentencing on the ground that it had no authority to grant such a motion, the panel would still have affirmed. U.S. v. Mitchell, 358 F.3d 216 (2d Cir. 2004).
2nd Circuit says court may consider co-defendants’ sentences when considering extent of departure. (716) Defendant printed counterfeit checks, which her co-conspirators would cash. In return, she received half of the funds obtained from the checks. She faced a guideline range of 24-30 months. However, the court departed downward to a sentence of 15 months’ because of defendant’s family circumstances and her significant post-offense rehabilitation. At the same time, the court opted not to depart downward to the point that defendant would receive no incarceration at all. This decision was based, in part, on defendant’s extensive criminal history and on the sentences received by her co-defendants. The Second Circuit held that a district court may consider co-defendants’ sentences when considering the extent of a downward departure. A factor which could not have been used as a basis for departure can nevertheless be considered when determining the extent of a departure on other grounds. In U.S. v. Lucas, 17 F.3d 596 (2d Cir. 1995), the court held that while it would not be proper to consider what the state sentence for defendant’s offense would be in order to determine whether or not to grant a downward departure, the state sentence could be considered where it merely influenced the extent of the downward departure granted. U.S. v. Bonner, 313 F.3d 110 (2d Cir. 2002).
2nd Circuit bars departure based on disparity caused by Southern California district’s charging policy. (716) Defendants pled guilty to unlawfully entering the US following deportation for conviction of an aggravated felony, in violation of 8 U.S.C. § 1326. The US Attorney’s Office in the Southern District of California has adopted a policy under which aliens who re-enter the US after having been deported following their convictions for aggravated felonies, and who agree to plead guilty, are charged under § 1325(a) rather than § 1326. Section 1325(a) carries a much lower maximum sentence than § 1326. The Second Circuit held that the district court lacked authority to grant a downward departure solely to match lower sentences imposed in the Southern District of California as a result of the exercise of prosecutorial discretion in that district to bring charges under § 1325(a) instead of § 1326. First, the departure inquiry must focus on the facts of the case in which the departure is sought. Second, the Sentencing Commission appears to have proscribed, as a categorical matter, the consideration of plea-bargaining practices even as they relate to a defendant’s own misconduct. See U.S. v. Stanley, 928 F.2d 575 (2d Cir. 1991) (rejecting departures based on sentencing disparities created by a prosecutor’s plea-agreement practices). Under the Chapter Six policy statements, a judge should reject a plea agreement, rather than depart upward, to compensate for what the court regards as undue prosecutorial lenience. If that is the case, there is no room for a downward departure to match lenience in an unrelated case. U.S. v. Bonnet-Grullon, 212 F.3d 692 (2d Cir. 2000), superseded on other grounds by statute, U.S. v. Leiva-Deras, 359 F.3d 183 (2nd Cir. 2004).
2nd Circuit rejects district court’s authority to sua sponte resentence defendant because of perceived sentencing disparity. (115) Defendant had a guideline range of 10 to 16 months, and received a 12 month sentence for his embezzlement offense. One week later, the district court sua sponte reduced defendant’s sentence to four months. In justifying the downward departure, the district court noted that the court had imposed a milder guidelines-mandated sentence on an unrelated defendant in a gun-trafficking case, which the court viewed as a far more serious offense than defendant’s embezzlement. The Second Circuit held that the district court lacked the authority to resentence defendant for this reason. A district court has the power to correct sentencing errors only where the error was “obvious,” and an egregious mistake has been made. Here, the district court’s distress over the fact that the sentencing guidelines prescribed a lower sentencing range for a gun-trafficker than for an embezzler was the kind of obvious error that a sentencing court has the power to correct. Moreover, even if the district court had the authority to alter its initial sentence, a perceived sentencing disparity between defendant and an unrelated defendant convicted of a different crime was not a proper ground for departure. U.S. v. Arjoon, 964 F.2d 167 (2nd Cir. 1992), superseded by rule on other grounds as stated in U.S. v. Werber, 51 F.3d 342 (2nd Cir. 1995).
2nd Circuit rejects ineffective assistance of counsel claim based upon failure to request downward departure. (716) The 2nd Circuit rejected defendant’s claim that he had received ineffective assistance of counsel because of his attorney’s failure to request a downward departure based upon the fact that his wife was expecting twins and the smaller sentence his co-defendant received. Family ties and responsibilities are not ordinarily relevant in determining whether to depart downward. The fact that a co-participant in the offense received a lower sentence is not a basis for a downward departure. U.S. v. Javino, 960 F.2d 1137 (2nd Cir. 1992).
2nd Circuit reverses downward departure designed to eliminate disparity among co-defendants. (716) The district court departed downward because of a desire to avoid the unfairness that would result from the “grave disparity” between defendant’s sentence and that of his co-defendants. The 2nd Circuit reversed because disparity between the sentences of individual co-defendants is not a proper basis for a downward departure. U.S. v. Minicone, 960 F.2d 1099 (2nd Cir. 1992).
2nd Circuit refuses to require district court to explain sentence disparity between co-defendants. (716) The 2nd Circuit rejected defendant’s request to vacate his sentence and remand his case so that the district judge could explain the disparity between defendant’s sentence and the lesser sentences of his co-defendants. Since the guidelines were properly applied, a remand would serve no purpose. Circuit precedent foreclosed the possibility of a departure on the basis of disparity among co-defendants’ sentences. Moreover, a defendant may generally not appeal a district court’s refusal to depart downward. U.S. v. Lanese, 937 F.2d 54 (2nd Cir. 1991).
2nd Circuit reverses downward departure intended to make defendant’s sentence proportionate to co-defendants’. (716) The 2nd Circuit ruled that it was improper to depart downward based upon a desire to sentence defendant proportionately with his more culpable co-defendants. A mere difference between co-defendants’ guideline ranges does not justify a departure. However, “a sentencing judge is entitled to achieve a result that coincidentally increases or decreases the gap between sentencing ranges applicable to co-defendants if the judge finds in good faith that the statutory criterion for a departure has been met.” Defendant could thus argue on remand for a revisitation of his role in the offense or acceptance of responsibility, since he was denied a reduction for both at sentencing. U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).
2nd Circuit rejects sentence disparity between co-defendants as a ground for downward departure. (716) The district court departed downward based in part on the disparity between the sentence imposed on a co-defendant and the sentence defendant would have received under the guidelines, despite the court’s belief that defendant’s was no more culpable than the co-defendant. Following recent circuit precedent, the 2nd Circuit found that disparity of sentences between co-defendants may not properly serve as a reason for departure. U.S. v. Alba, 933 F.2d 1117 (2nd Cir. 1991).
2nd Circuit rejects downward departure for disparity caused by government’s plea bargaining practices. (716) The guidelines direct that a defendant who uses a firearm in connection with narcotics trafficking shall receive a two-level offense level enhancement, except that if he is convicted under 18 U.S.C. § 924(c), the enhancement should be disregarded, and he should be sentenced to the mandatory five-year term. The District Court found that the U.S. Attorney often charged defendants who refused to plead guilty with § 924(c), but allowed similarly situated defendants who pled guilty to avoid § 924(c) charges. The district court found that this plea bargaining practice created a disparity between those defendants who pled guilty and those who went to trial. To eliminate the disparity the court departed downward. The 2nd Circuit reversed, finding no impropriety. It is “constitutionally legitimate” for the prosecutor to threaten more severe charges to persuade a defendant to plead guilty. U.S. v. Stanley, 928 F.2d 575 (2nd Cir. 1991).
2nd Circuit rejects downward departure intended to increase difference between defendant’s and co-defendant’s sentence. (716) The district court departed downward for two defendants because it felt that the difference between their guideline sentences and two more culpable co-defendants was too small. The more culpable co-defendants had received 90-month sentences, while the less culpable defendants had guideline ranges of 63 to 78 months, and 57 to 71 months. The district court sentenced them to 40 months and 18 months, respectively. The 2nd Circuit reversed, finding that the Sentencing Commission fully considered the disparities that would result among co-defendants. Although a guideline range may seem harsh or lenient when compared to that of a co-defendant, the same range is applicable throughout the country. A defendant should not be favored simply because his sentencing range is not as distant from that of his co-defendant as the sentencing judge thinks appropriate. U.S. v. Joyner, 924 F.2d 454 (2nd Cir. 1991).
2nd Circuit finds codefendant’s sentence irrelevant where there are differing circumstances. (716) Quoting its earlier opinion, the 2nd Circuit stated that “a codefendant’s sentencing range was irrelevant in determining the defendant’s sentence where there are differing circumstances.” Here, the codefendant had no aggravating role in the criminal activity so his offense level was not enhanced. Although defendant and the codefendant stipulated to the same facts, the 2nd Circuit found that the two defendants’ differing circumstances justified the disparate sentences. U.S. v. Schular, 907 F.2d 294 (2nd Cir. 1990).
2nd Circuit holds that one co-defendant’s guideline levels are not relevant in determining another co-defendant’s guidelines. (716) Defendant who pled guilty claimed that he should have received the lower guideline range accorded his co-defendant sentence pursuant to a plea bargain on the same indictment. The 2nd Circuit held that guideline levels granted to co-defendants in entirely different circumstances are irrelevant in determining defendant’s guideline. U.S. v. Rios, 893 F.2d 479 (2nd Cir. 1990).
2nd Circuit holds that disparities in sentences between co-defendants do not violate policy of guideline sentences. (716) Defendant who received a 72 month sentence, appealed because his co-defendant only received a 60 month term. The Second Circuit rejected his claim that the disparity in sentences violated the policy of the Sentencing Reform Act. The court found that no unfair disparity existed. U.S. v. Sanchez-Solis, 882 F.2d 693 (2nd Cir. 1989).
3rd Circuit upholds 12-year sentence for insider trading. (716) Defendant was a participant in a three-man insider-trading conspiracy that ran for 17 years. The district court sentenced him to 144 months. Although the sentence was the longest insider-trading sentence in history, it fell within the middle of his 135-168 month sentencing range. The Third Circuit held that the sentence was procedurally and substantively reasonable. Although there was an obvious disparity between defendant’s sentence and the nine-year sentence received by a co-conspirator who netted gains many times larger, there was a good reason for the disparity. Defendant served as the source of the information that permitted the scheme to function. Further, defendant was an attorney who took an oath to uphold the law. Moreover, it was “really quite remarkable” that defendant “could not even wait to graduate from law school” before starting his illegal activities. Although defendant received a severe sentence, the district court set forth adequate reasons to show that it considered the parties’ arguments. Defendant failed to overcome the presumption of reasonableness applicable to within-guidelines sentences. U.S. v. Kluger, 722 F.3d 549 (3d Cir. 2013).
3rd Circuit reverses where court failed to address disparity argument. (716) Defendant was convicted of charges related to sexual messages he sent a minor in order to persuade her to have sex with him. He was sentenced to 240 months, which represented a 30-month upward departure. On appeal, defendant argued that his sentence was unreasonable because the district court failed to consider his request for a downward variance based on the disparity between his sentence for attempted statutory rape, and the lower state and federal maximum sentences for actually committing statutory rape. The Third Circuit found that the disparity argument based on Pennsylvania’s 10-year maximum sentence for statutory rape lacked colorable legal merit. Section 3553(a)(6) addresses unwarranted sentence disparities among federal defendants who are similarly situated, not disparate federal and state sentences. However, the panel agreed that the court committed procedural error by failing to address defendant’s argument based on the disparity between his sentence and the 15-year maximum penalty under federal law for actually committing statutory rape. U.S. v. Begin, 696 F.3d 405 (3d Cir. 2012).
3rd Circuit finds valid reasons for harsher sentence for ringleader of money laundering operation. (716) Defendant and his wife and daughter, who ran a check-cashing business, were convicted of money laundering charges. Defendant was sentenced to 60 months imprisonment while both his wife and daughter were sentenced to five-year terms of probation. He argued that the district court failed to explain why he was sentenced to prison while his wife and daughter were not, and that this was required by 18 U.S.C. § 3553(a)(6). The Third Circuit found no error. The record made clear that the district court saw defendant as the ringleader of the criminal activity. He was the president of the company, and was in charge of its compliance with the applicable regulations with respect to money laundering. He received a two-level enhancement for being a leader, manager or supervisor of the criminal activity. The 60-month sentence, which fell below his guideline range of 78-97 months, was not substantively excessive. U.S. v. Quiles, 618 F.3d 383 (3d Cir. 2010).
3rd Circuit upholds 22-year sentence for member of violent street gang as reasonable. (716) Based on his involvement with a local sect of a violent nationwide street gang, defendant was convicted of various racketeering, drug, firearms and violence crime offenses. He argued that his 22-year sentence was procedurally unreasonable because the district court never formally ruled on his motion for a downward departure based on an overstatement of his criminal history. The Third Circuit found no error. Although the court did not explicitly deny defendant’s motion, it was fully informed on the issue and did not grant his requested departure. There was nothing in the record to indicate that the court was acting under the mistaken belief that it lacked the discretion to reduce his criminal history category under the evidence before it. The court gave “meaningful consideration” to the disparity between the sentences of defendant and his co-defendant Wright, noting that Wright and defendant were not similarly situated in all respects. The 22-year sentence was substantively reasonable. The court extensively discussed the reasons underlying his sentence, finding it was connected to the seriousness of the crime and the “awful society impact” of the gang on the community. U.S. v. Jones, 566 F.3d 353 (3d Cir. 2009).
3rd Circuit says below-guideline sentence in similar case did not make guideline sentence unreasonable. (716) Defendant was involved in a mortgage and bank fraud conspiracy. Relying on the one-year sentence received by the defendant in a similar but unrelated case, defendant argued that the court improperly considered the § 3553(a) factors in sentencing him to 40 months, which fell within the middle of the applicable guideline range of 37-46 months. The Third Circuit found that the guideline sentence was reasonable. The existence of another case where a defendant was charged with a somewhat similar crime and faced the same advisory guideline range, but who received a below-guideline sentence, did not make defendant’s within-guideline sentence unreasonable. If that were the law, any sentence outside of the Guideline range would set precedent for all future similarly-convicted defendants. Although a similar sentence might have been reasonable here, that did not make defendant’s sentence unreasonable. U.S. v. Jimenez, 513 F.3d 62 (3d Cir. 2008).
3rd Circuit holds that § 3553(a)(6) is not directed at disparity between co-defendants’ sentences. (716) Defendant and two co-defendants were convicted of drug conspiracy charges. Defendant was originally sentenced to 349 months, while his co-conspirators received sentences of 125 and 324 months, respectively. The Third Circuit later remanded for resentencing in light of U.S. v. Booker, 543 U.S. 220 (2005). On remand, the court resentenced the co-conspirators to 86 and 180 months of imprisonment, but it resentenced defendant to 349 months, an identical term to that originally imposed. Defendant argued that his sentence was unreasonable because it failed to take into account “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” § 3553(a) (6). The Third Circuit concluded that the goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case. Therefore, a defendant cannot rely upon § 3553(a)(6) to seek a reduced sentence designed to “lessen disparity between co-defendants’ sentences.” Moreover, even if § 3553(a)(6) were applicable to co-defendants, it only applies where co-defendants are similarly situated. The court here distinguished its reduction of one co-conspirator on the grounds that he had assisted in convicting his co-defendants. It also distinguished the second defendant’s reduction in sentence, noting that he had a far less extensive criminal record than defendant. Defendant did not meet his burden of establishing that his sentence was unreasonable. U.S. v. Parker, 462 F.3d 273 (3d Cir. 2006).
3rd Circuit holds that sentence below advisory range was reasonable. (716) Defendant smuggled about 10,000 pills of ecstasy into the U.S. She was traveling with two companions, and the total amount of ecstasy smuggled by defendant and her co-conspirators was 35,000 pills. The district court sentenced her to 23 months, which was seven months below her advisory sentencing range. A more culpable co-defendant who was held accountable for more than three times the number of ecstasy tablets as defendant received only a 30-month sentence. The Eighth Circuit held that the 23-month sentence was reasonable. The panel lacked jurisdiction to review her claim that the district court should have granted a downward departure based on aberrant behavior. The court properly considered defendant’s relevant conduct—Booker did not alter the consideration of relevant conduct. Finally, although defendant argued that the court should not have permitted a sentencing disparity between co-defendants, this was a post-Booker sentencing, the court was aware of its new responsibility under 18 U.S.C. §3553(a), and the sentence was reasonable. U.S. v. Giaquinto, 441 F.3d 195 (3d Cir. 2006).
3rd Circuit says discretionary refusal to depart downward for disparity between co-defendants is not reviewable. (716) Three defendants argued that they were entitled to a downward departure because they received higher sentences than those imposed on co-conspirators sentenced by a different judge. The Third Circuit noted that U.S. v. Cifuentes, 863 F.2d 1149, 1156 n.5 (3d Cir. 1988) held that a “[d]isparity of sentence between co-defendants does not of itself show an abuse of discretion.” But in any event, the district court recognized that it had discretion to depart downward based on disparity, and declined to do so. Accordingly, the Third Circuit said “we have no jurisdiction to review its exercise of discretion.” U.S. v. Hart, 273 F.3d 363 (3d Cir. 2001).
3rd Circuit remands to reconsider departure based on disparity and age of 62-year old defendant. (716) Defendant was 62-years old, but was not alleged to be in poor physical health. The district court departed downward from 168 months to a sentence of 150 months because of defendant’s age, and to reduce disparity with co-defendants’ sentences. The 3rd Circuit remanded for reconsideration of the departure. Departures based on age are permitted when the defendants are elderly and infirm and home confinement is equally efficient and less costly. But appropriate findings to support a downward departure on this ground alone were not made. Under U.S. v. Higgins, 967 F.2d 841 (3rd Cir. 1992), sentence disparity among co-defendants is not a sufficient basis for departure. However, because it was unclear from the record whether there were unusual circumstances that would constitute an exception to the Higgins rule, the case was remanded for reconsideration. ), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d cir. 1995).
3rd Circuit allows considering co-defendant’s sentence in selecting sentence within guideline range. (716) Defendant argued that the district court’s decision to sentence him to the top of the guideline range was based on the fact that his co-defendant received a longer sentence, and that considering this fact violated the law. The 3rd Circuit found that the district court did not rely on an improper factor in sentencing. Defendant pointed only to a statement by the district judge noting the disparity in sentences for the defendants. However, the disparity was based on a difference in criminal histories. Moreover, there is nothing to preclude a district court from considering a co-defendant’s sentence when selecting a sentence within the guideline range. U.S. v. Newby, 11 F.3d 1143 (3rd Cir. 1993).
3rd Circuit rejects disparity between co-defendants as a ground for downward departure. (716) Defendant argued that the district court mistakenly believed that it lacked the authority to depart downward on various offered grounds. The 3rd Circuit held that to the extent that the disparity of sentence among the co-defendants was alleged to be a mitigating factor, it was not a proper basis for a downward departure. U.S. v. Higgins, 967 F.2d 841 (3rd Cir. 1992).
4th Circuit rejects sentencing disparity claim of defendant whose testimony was “pack of lies.” (716) Defendant argued that his sentence was disproportionate compared to the sentences received by most of his co-conspirators. His co-conspirators, however, cooperated with the government or accepted responsibility for their actions, neither of which was the case for defendant. The district court found that defendant not only vigorously defended himself, but did so with what the district court characterized as “one of the biggest pack of lies that I think I have ever heard from any defendant testifying in all my years of trial litigation.” Nonetheless, defendant received a sentence that was 72 months below the bottom of the guidelines’ recommended range. The Fourth Circuit upheld the sentence as reasonable. Defendant presented no evidence to suggest that his sentence was unreasonable, especially since appellate courts view sentences within the guidelines range as presumptively reasonable. U.S. v. Offill, 666 F.3d 168 (4th Cir. 2011).
4th Circuit affirms within-guideline sentence as reasonable. (716) Defendant was convicted of conspiring to defraud the United States, and aiding and assisting in tax fraud. He argued that his 108-month sentence was substantively unreasonable, presenting evidence that the average prison term for defendants who are convicted in cases involving between $2.5 and $5 million was 46.6 months. He also pointed out that co-conspirator Ross was sentenced to five years’ probation, co-conspirator Johnston was sentenced to 37 months in prison, and co-conspirator Decker was given immunity in exchange for his testimony. The Fourth Circuit held that the within-guidelines sentence was substantively reasonable. The court did not rely on the statistics advanced by defendant, which were drawn from other cases, but instead conducted an individualized assessment of defendant’s circumstances in the case based on factors identified in the guidelines and 18 U.S.C. § 3553(a). After considering all the § 3553(a) factors in depth, the court concluded that a sentence within the guideline range was appropriate. There was no abuse of discretion. U.S. v. Thorson, 633 F.3d 312 (4th Cir. 2011).
4th Circuit rejects sentencing disparity claim where co-conspirator testified against defendant. (716) Defendant was convicted of theft of government property. DuBois, who was higher up the criminal ladder than defendant, and whose share of the profits was about ten times greater than defendant’s, was sentenced to 36 months, while defendant was sentenced by a different judge to 48 months. Moreover, defendant argued that DuBois perjured himself at defendant’s trial by attempting to minimize his culpability in ways that were inconsistent with his plea agreement. Defendant acknowledged that DuBois’s sentence was the result of DuBois’s cooperation at defendant’s trial, but insisted “providing assistance” must necessarily mean truthful assistance. Thus, defendant contended that the disparity between his sentence and Dubois’s sentence was unwarranted. The Fourth Circuit disagreed. Dubois pleaded guilty, assisted the government in the investigation, and testified to the government’s satisfaction in defendant’s trial. Defendant was in no position to complain about the government’s evaluation of DuBois’s assistance. U.S. v. Jeffery, 631 F.3d 669 (4th Cir. 2011).
4th Circuit says downward variance for al-Qaeda member was abuse of discretion. (716) Defendant was an American convicted of nine charges relating to his affiliation with an al-Qaeda terrorist cell in Saudi Arabia, and its plans to carry out a number of terrorist attacks in this country, including a plan to assassinate the President. The advisory guidelines called for a sentence of life imprisonment, but the district court imposed a sentence of 360-months’ imprisonment and 360 months of supervised release. The Fourth Circuit reversed, holding that the court abused its discretion when it compared defendant’s case to those of John Walker Lindh, Timothy McVeigh and Terry Nichols. Lindh received a 20-year sentence for fighting for the Taliban in Afghanistan. As a front-line soldier, the magnitude of the threat posed by Lindh was limited to those soldiers within his line of sight, while defendant sought to inflict massive civilian casualties and to assassinate the President. Lindh also cooperated with prosecutors. Defendant refused to cooperate, did not express remorse, and stood convicted of crimes carrying a mandatory minimum of 20 years. The court also erred in comparing defendant to Oklahoma City bombers Timothy McVeigh and Terry Nichols. The fact that defendant never injured any people should not trivialize the severity of his offenses. The lack of completion was due to his arrest, and not to any change of heart. Finally, while the Oklahoma City bombing was heinous, to require a similar infliction of harm before imposing a similar sentence would raise the bar too high. U.S. v. Abu Ali, 528 F.3d 210 (4th Cir. 2008).
4th Circuit holds that downward variance to make sentence similar to co-defendant’s was unreasonable. (716) The judge properly calculated defendant’s guideline range as 97-112 months, but imposed a 52-month sentence. The district court was concerned about the disparity with the 46-month sentence received by a co-defendant, who the court felt was similarly situated to defendant. The Fourth Circuit held that the sentence was unreasonable. The variance reduced defendant’s sentence from his recommended guideline range by almost half. Thus, the court was required to present “compelling reasons” for the variance. However, the sentence reduction focused almost exclusively on the co-defendant’s sentence. Thus, the court gave “excessive weight” to “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Moreover, defendant and his co-defendant were not similarly situated. The co-defendant was the second of the 11 defendants to plead guilty, and received a three-level reduction for acceptance of responsibility. In contrast, defendant gave false statements to investigators, destroyed evidence, provided “incredible” testimony at trial, and received an obstruction of justice enhancement. U.S. v. Khan, 461 F.3d 477 (4th Cir. 2006).
4th Circuit says § 3553(a)(6) is not concerned with sentencing disparities between state and federal defendants. (716) Defendant pled guilty in federal court to conspiring to distribute crack cocaine, which crime she committed in the State of Virginia. Although the guideline provided for a sentencing range of 46-57 months, the court sentenced defendant to eight months, giving “great weight” to the fact that defendant would have received a much lower sentence for a comparable state crime in Virginia. Under 18 U.S.C. § 3553(a)(6), district courts must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been convicted of similar conduct.” The Fourth Circuit ruled that the district court either failed to consider this provision or considered it improperly. It seemed likely that the court did not consider § 3553(a)(6) at all, and simply resorted to state law for additional insight as to what would constitute a reasonable sentence, wholly without regard for whether the sentence would result in sentencing disparities. It was also possible the court incorrectly believed that the disparities to be avoided were those between state and federal defendants. However, the sole concern of § 3553(a)(6) is with sentencing disparities among federal defendants. U.S. v. Clark, 434 F.3d 684 (4th Cir. 2006).
4th Circuit says refusal to depart based on sentencing disparity not reviewable. (716) Defendants challenged the court’s refusal to depart from the guidelines to remedy the disparity between their base offense levels and that of Beisler, who had pled guilty and was sentenced to six months’ home confinement. Defendants went to trial and were sentenced to more than seven years in prison. However, disparity among co-defendants’ sentences is not a permissible ground for departure, even where the disparity results from the use of different loss figures for co-defendants. Here, the court recognized its authority to depart and entertained the defendant’s argument on this point. The court ruled, however, that there was no evidence of prosecutorial misconduct. Because the court’s refusal to depart followed its conclusion that the evidence did not support a departure, the Fourth Circuit found the issue not reviewable on appeal. U.S. v. Quinn, 359 F.3d 666 (4th Cir. 2004).
4th Circuit says defendant not entitled to same departure in loss calculation as co-conspirator. (716) Defendant corporation, a government contractor, fraudulently represented that Brothers, a “disadvantaged business enterprise” (DBE), had performed work on a highway construction project, as required by defendant’s contract. Defendant challenged the district court’s finding of a $146,710.52 loss, since co-conspirator Ware, the president of Brothers, was only held responsible for a loss of $10,000. The Fourth Circuit found no error. The sentencing court arrived at the $10,000 loss for Ware by departing downward because the guideline amount overstated the seriousness of Ware’s individual conduct. Thus, for defendant to argue that it was entitled to the $10,000 loss figure was to argue that it was entitled to a downward departure because Ware received one. Apart from the fact that sentencing court cannot depart merely because of a disparity in sentencing, there were obvious differences between the two defendants. U.S. v. Brothers Const. Co. of Ohio, 219 F.3d 300 (4th Cir. 2000).
4th Circuit reverses downward departure based on disparate sentences. (716) Defendant was the leader of a group of drug dealers. He was convicted of distributing 50 or more grams of crack cocaine. The district court departed downward because of (1) the comparatively lenient treatment given to similarly culpable codefendants, (2) the fact that most of defendants’ codefendants were white, leading to an unwarranted racial disparity in sentencing, and (3) the decreased sentence more accurately reflected defendant’s relative culpability. The Fourth Circuit reversed. Disparate sentences among codefendants is an impermissible ground for departure. Race can never be a basis for departure. The district court ignored the non-racial reasons why defendant received the highest guideline sentence. In particular, defendant was the only co-defendant to go to trial, he had a prior criminal record, sold more drugs than anyone else, and was a leader. Although the government failed to object at sentencing, the departure was plain error. Disagreeing with the Fifth and Eighth Circuits, and agreeing with the First, Sixth, Tenth and D.C. Circuits, the court held that government can obtain plain error review of an illegal sentence that decreases the length of incarceration. U.S. v. Perkins, 108 F.3d 512 (4th Cir. 1997).
4th Circuit rejects sentencing disparity as grounds for downward departure. (716) Defendant argued that his 30 year sentence was excessive when compared to the sentences of his co conspirators. He also sought a downward departure because the he claimed the prosecutor charged him with a 30 year minimum mandatory offense to get him to accept a plea bargain. The Fourth Circuit held that neither sentencing dis-parity between co conspirators nor what defendant termed “excessive prosecutorial sentencing power” presented a valid ground for a downward departure. Defendant did not allege prosecutorial misconduct. Although the district court might disagree with the sentence, the court correctly determined that it had no legal basis upon which to depart. U.S. v. Davis, 98 F.3d 141 (4th Cir. 1996).
4th Circuit rejects downward departure based on co-defendant’s disparate sentence. (716) Defendant pled guilty to armed bank robbery, and was sentenced as a career offender based on his two prior state convictions for breaking and entering and common law robbery. He argued that the district court erred in not departing downward based on the disparity between his sentence and his co-defendant brother’s sentence. Although the brother had been involved in the same prior offenses as defendant, due to a plea agreement, the robbery charge was dismissed against the brother. Accordingly, he did not have the predicate convictions to be classified as a career offender. The 4th Circuit rejected the disparate sentences as a grounds for a downward departure. Since the brother could not be declared a career offender because there was no common law robbery conviction on his record, the disparity between the brothers’ sentences was not unwarranted. U.S. v. Fonville, 5 F.3d 781 (4th Cir. 1993).
4th Circuit rejects downward departure to equalize sentence with co-defendant’s state sentence. (716) The district court departed downward by two years so defendant’s federal sentence would be equal to what the court determined his co-conspirator would receive in state court. The court reasoned that this promote prosecuting all co-conspirators in federal court. In addition, it would eliminate disparate sentencing of similarly situated defendants guilty of the same federal offense. The 4th Circuit reversed, ruling that both reasons were unlawful. First, whether to prosecute and what charges to bring are decisions for the prosecutor’s discretion. Second, the guidelines were intended to create sentencing uniformity among defendants nationally, even if they create some apparent disparity in the sentencing of co-conspirators in an individual case. To depart downward when a co-defendant receives a shorter state sentence would exacerbate national sentencing disparities. U.S. v. Piche, 981 F.2d 706 (4th Cir. 1992), superseded by statute on other grounds. See U.S. v. Alalade, 204 F.3d 536 (4th Cir. 2000).
4th Circuit rejects disparity among co-conspirators sentenced in federal and state court as grounds for departure. (716) The 4th Circuit affirmed the district court’s determination that sentencing disparity among co-conspirators or co-defendants sentenced in either federal or state court is not a proper basis for a downward departure. Such a policy would undermine the nationwide uniformity that Congress sought in implementing the guidelines. Moreover, once a court has decided to depart on a ground independent from sentencing disparity, the court may not consider sentencing disparity in determining the extent of the departure. A sentencing court may not consider, in determining the extent of a departure, a factor that would not constitute a valid basis for departure. U.S. v. Hall, 977 F.2d 861 (4th Cir. 1992).
4th Circuit rejects downward departure to rectify charging decisions that created disparate sentences among co-conspirators. (716) The ringleader of a drug conspiracy cooperated with the government by providing evidence against his co-conspirators. As a result of his pre-indictment deal, he pled guilty to only two charges, and received a 108-month sentence. A less culpable co-conspirator did not cooperate and thus was charged with more serious drug offenses carrying a much higher sentencing range. The district court departed downward under section 5K2.0 based on the prosecutorial charging decision, which produced extremely disparate sentences with respect to the culpability of the co-conspirators. The 4th Circuit re-versed, holding that absent proof of actual prosecutorial misconduct, a district court may not depart downward based on the disparity of sentences among co-defendants. U.S. v. Ellis, 975 F.2d 1061 (4th Cir. 1992).
4th Circuit affirms refusal to depart downward despite government motion. (716) Defendant was originally sentenced within his guideline range. Thereafter, a co-conspirator was arrested and defendant agreed to testify against him. After defendant testified, the co-conspirator pled guilty. The government then filed a motion to reduce defendant’s sentence under Fed. R. Crim. P. 35(b), and the district court reduced it by 35 months. Defendant claimed that the district court erred in failing to make a downward departure at the time of his original sentence, particularly in light of the government’s motion under § 5K1.1 for a downward departure of 10 to 15 percent from the lowest guideline sentence and the district court’s granting of a reduction to a less deserving co-defendant. The 4th Circuit found no error in the district court’s refusal to grant a downward adjustment at the time of the initial sentence or the refusal to grant a reduction greater than 35 months. The fact that the government made a motion did not remove the decision to depart from the court’s discretion. The granting of a similar motion to a co-defendant was not sufficient to show abuse of discretion. U.S. v. Richardson, 939 F.2d 135 (4th Cir. 1991).
4th Circuit upholds upward departure despite district courts’ comment regarding co-defendant’s sentence. (716) The 4th Circuit affirmed an upward departure despite the sentencing judge’s comment that he thought it would be unfair for the defendant to receive a lesser sentence than a co-defendant. Because the district court judge outlined his reasons for departure and explicitly did not depart upwards for the purpose of imposing the same sentence on both defendants, the departure was correct. U.S. v. McKenley, 895 F.2d 184 (4th Cir. 1990).
5th Circuit rejects challenges to drug sentence at top of guideline range. (716) Defendant was convicted of drug charges, and sentenced to 235 months. He challenged an increase under 21 U.S.C. § 841(b)(1)(A), which requires a mandatory minimum 20 years if the defendant has a prior conviction for a felony drug offense. The Fifth Circuit found no error, because the district court did not actually apply § 841(b)(1)(A). Although the government had proven the facts necessary for the enhancement, the district court did not apply it “out of an abundance of caution.” Instead, the court sentenced defendant to 235 months, less than the 20-year minimum under § 841(b)(1)(A). The 235-month sentence was at the top of the guideline range of 188-235 months. Within-guidelines sentences enjoy a presumption of reasonableness. The fact that co-defendant Guerra received a three-year sentence did not make defendant’s sentence unreasonable. Guerra cooperated with DEA agents and accepted responsibility by pleading guilty. U.S. v. Ochoa, 667 F.3d 643 (5th Cir. 2012).
5th Circuit says defendant and co-conspirator were not similarly situated. (716) Defendant pled guilty to methamphetamine and pseudoephedrine charges. He argued that his consecutive sentences were substantively unreasonable because co-conspirator Caldwell, who was allegedly a similarly-situated defendant, received concurrent sentences for identical offenses. The Fifth Circuit rejected this argument because defendant Caldwell was not similarly situated. Defendant acknowledged his managerial role in the conspiracy, whereas Caldwell had no leadership role. The court did not abuse its discretion in sentencing defendant to 360 months. U.S. v. Conn, 657 F.3d 280 (5th Cir. 2011).
5th Circuit finds that co-defendants who received shorter sentences were not similarly situated. (716) Defendant argued that his 240-month drug conspiracy sentence was unreasonable because it was substantially greater than the sentences of co-defendants who were more culpable than he was. The Fifth Circuit held that defendant did not show that the district court abused its discretion. Section 3553(a)(6) only requires courts to consider the need to avoid unwarranted disparities between similarly situated defendants nationwide; it does not require the district court to avoid sentencing disparities between co-defendants who are not similarly situated. Defense counsel acknowledged that co-defendants Silva or Hooper likely received a downward departure for substantial assistance. Defendant did not show he was similarly situated to Silva or Hooper. The court’s statement that defendant’s sentence was “in keeping with the horizontal equity among the various defendants” showed that it sought to avoid an unwarranted sentence disparity, and it imposed a sentence that it believed was appropriate based on the co-defendants’ sentences and other § 3553(a) factors. U.S. v. Guillermo-Balleza, 613 F.3d 432 (5th Cir. 2010).
5th Circuit finds errors not plain where court strongly believed probation for child pornographer was appropriate. (716) Defendant received a 60-month probationary sentence for possessing child pornography. The government argued for the first time on appeal that the district court committed procedural error when it (1) took into account the disparity between defendant’s sentence and his co-defendant’s sentence, and (2) failed to consider pertinent Guidelines provisions barring probation where the guideline range falls within Zone D. The Fifth Circuit agreed that the district court erred when it considered the sentencing disparity between defendant and his co-defendants, because the disparity was caused by the co-defendant’s receipt of a substantial assistance departure. Despite the error, the panel could not remand under plain error review because the government failed to establish that the error affected substantial rights. The district court strongly believed that probation was appropriate given defendant’s unique circumstances. Therefore, any potential procedural error did not affect the outcome. The sentence was also substantively reasonable. U.S. v. Duhon, 541 F.3d 391 (5th Cir. 2008).
5th Circuit remands where court believed guidelines barred departure for sentencing disparity. (716) Defendant, a CPA and tax attorney, helped a client hide assets from the IRS. Defendant requested a downward departure based on the sentencing disparity between the client and defendant, who played a much more peripheral role and did not profit from the crime. The sentencing court was troubled by the discrepancy in sentences between the client and defendant, but found that it did not have a basis to depart. In Koon v. United States, 518 U.S. 81 (1996), the Supreme Court held that departure factors should normally not be ruled out on a categorical basis and that courts may depart if the case is outside the heartland After the Seventh Circuit categorically denied departures based on discrepancies among co-defendants’ sentences, the Supreme Court remanded the case for reconsideration in light of Koon. See U.S. v. Meza, 127 F.3d 545 (7th Cir. 1997). Since the district court here appeared to have believed that the sentencing discrepancy could not be a basis for a downward departure, the Fifth Circuit remanded for resentencing. U.S. v. Wright, 211 F.3d 233 (5th Cir. 2000).
5th Circuit says co-defendant’s shorter sentence after conviction vacated did not violate guidelines. (716) Defendant moved under 28 U.S.C. § 2255 to vacate his conviction and sentence under 18 U.S.C. § 924(c)(1) for using and carrying a firearm during a drug trafficking crime. His co-defendant had filed essentially the same motion several months earlier. The court granted the co-defendant’s motion based on the Supreme Court’s interpretation of the “use” prong of § 924(c)(1) in Bailey v. United States, 516 U.S. 137 (1995). However, the district court refused to vacate defendant’s conviction, since the jury had been instructed that it could convict if he “knowingly used or carried” a firearm. Defendant filed a motion to reconsider, arguing in part that the Sentencing Guidelines required that he and his co-defendant be sentenced similarly. The Fifth Circuit found the guidelines had no bearing on this case, since it was 18 U.S.C. § 924(c)(1), the statutory provision under which defendant was convicted, that set the mandatory sentence imposed on defendant. Moreover, defendant’s comparison of the sentences imposed on him and his co-defendant was inapt – the district court vacated the co-defendant’s § 924(c)(1) conviction and its sentence. Defendant did not receive a longer sentence for the same crime, since his co-defendant was not convicted of the same crimes. U.S. v. Lawrence, 179 F.3d 343 (5th Cir. 1999).
5th Circuit rejects sentencing disparity claim. (716) Defendants, who went to trial, received greater sentences than their more culpable co-conspirators who pled guilty and testified against them at trial. Defendants argued that their harsher sentences were in retaliation for their decision to stand trial and constituted cruel and unusual punishment. The Fifth Circuit disagreed. Both defendants received sentences within the guideline range, and did not argue that the guidelines were incorrectly applied. A defendant cannot challenge his sentence based solely on a lesser sentence given to a co-defendant. U.S. v. McKinney, 53 F.3d 664 (5th Cir. 1995).
5th Circuit says extent of departure may be based on factors that do not support initial departure. (716) The government recommended § 5K1.1 substantial assistance departures to 24-30 months for each defendant. The district court refused to depart below 60 months because less culpable co-conspirators had received higher sentences. Defendants argued that since disparity among co-defendants is an improper ground for a departure, it is an improper basis for limiting a departure. The Fifth Circuit, disagreeing with U.S. v. Hall, 977 F.2d 861 (4th Cir. 1992), held that once a court validly departs, the guidelines do not limit the extent of the departure. Except where federal law specifically limits the district court’s authority, the guidelines do not disturb the traditional and almost complete deference afforded the district court in sentencing. Thus, the court had discretion to limit the departure based on disparity between co-defendants. U.S. v. Alvarez, 51 F.3d 36 (5th Cir. 1995).
5th Circuit upholds longer sentence for defendant with obstruction enhancement and longer criminal history. (716) Defendant argued that his Eighth Amendment rights were violated when he was given a longer sentence than his co-conspirators. He claimed that he was treated more harshly because he made death threats against both the trial judge and the sentencing judge. The Fifth Circuit affirmed. The sentencing judge stated that she did not consider any of the information about the alleged death threats in determining the applicable guideline range. Defendant’s higher sentence was based on an obstruction of justice enhancement (based on his attempt to suborn perjury) and his higher criminal history category. U.S. v. Okoronkwo, 46 F.3d 426 (5th Cir. 1995).
5th Circuit reverses downward departure to harmonize sentence with more culpable co-defendants. (716) Defendant had a guideline range of 188-235 months. The district court departed to a 120-month term to give defendant a sentence “consistent with other defendants who were more culpable but benefited in sentencing by nature of their plea agreements.” The 5th Circuit reversed, because a court may not depart down based solely on the disparity of sentences among co-defendants or co-conspirators. U.S. v. Brown, 29 F.3d 953 (5th Cir. 1994).
5th Circuit holds that defendant did not prove his sentence was disproportionately excessive. (716) The 5th Circuit held that defendant did not show that his sentence was disproportionately excessive when compared with others similarly situated. Defendant failed to identify any defendants who were sentenced, like him, for both pre-guidelines and guidelines offenses. There was also no evidence that members of defendant’s “comparison pool” played as significant a role as defendant. U.S. v. Miro, 29 F.3d 194 (5th Cir. 1994).
5th Circuit rejects disparity of sentences among co-defendants as grounds for downward departure. (716) The 5th Circuit rejected disparity of sentences among co-defendants as grounds for a downward departure, even when the disparity is caused by prosecutor’s decision to plea bargain favorably with one co- defendant and unfavorably with another. U.S. v. Ives, 984 F.2d 649 (5th Cir. 1993).
5th Circuit rejects upward departure to achieve “sentencing equity” between co-defendants. (716) The district court departed upward in part so that “fair equity” would be afforded to defendant’s co-defendant, who received a considerably stiffer sentence than defendant. Following U.S. v. Ives, 984 F.2d 649 (5th Cir. 1993), decided the same day, the 5th Circuit held that under no circumstances could a district court depart upward or downward in order to achieve “sentencing equity” between co-defendants. U.S. v. Davidson, 984 F.2d 651 (5th Cir. 1993).
5th Circuit finds that district court was aware of its authority to depart downward. (716) Defendant argued that the district court erroneously believed that it lacked authority to depart downward. This was based upon the district court’s comment at sentencing that it regretted imposing the same sentence on two defendants when one defendant was less culpable. The 5th Circuit affirmed the failure to depart downward. The district court did recognize its ability to depart, but found no facts upon which to base such a departure. U.S. v. Jackson, 978 F.2d 903 (5th Cir. 1992).
5th Circuit holds that sentencing disparity does not justify downward departure. (716) The 5th Circuit rejected defendant’s claim that the district court failed to consider the need to avoid unwarranted sentence disparities among defendants with similar records who had been found guilty of similar conduct. Although defendant showed that his sentence differed from those of three other defendants convicted of similar crimes, he failed to convince the court that these disparities were unwarranted. Absent a violation of law, an appellate court will uphold a district court’s refusal to depart from the guidelines. A district court has no duty to consider the sentences imposed on other defendants. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992).
5th Circuit rejects attack on sentence based on lesser sentences received by co-conspirators. (716) Defendant contended that his sentence was disproportionately high when compared to the sentences received by other, more culpable co-conspirators. The 5th Circuit rejected this complaint, since defendant’s 12-month sentence was well within his 10 to 16 month guideline range. Defendant could not attack his own guideline range sentence based upon the sentences of his co-conspirators. U.S. v. Arlen, 947 F.2d 139 (5th Cir. 1991).
5th Circuit rules disparate sentence does not violate “spirit” of guidelines. (716) Defendant claimed that the disparity between his sentence and the sentence of one of his co-conspirators rendered his sentence defective under the “spirit” of the guidelines. The 5th Circuit rejected this contention, since defendant’s sentence fell within the range recommended by the guidelines. The fact that another party received a sentence lower than defendant did not render defendant’s otherwise legal sentence a violation of the guidelines. U.S. v. Puma, 937 F.2d 151 (5th Cir. 1991).
5th Circuit finds no disparity in co-defendants’ sentences. (716) Defendants complained that their sentences were grossly disproportionate to the sentences received by co-defendants who pled guilty. Defendants were sentenced under the harsher guidelines, while they contended that those who pled guilty did so to pre-guidelines offenses, and thus not only received lesser sentences, but also benefitted from old law provisions such as of parole. The 5th Circuit found no merit to this claim, even assuming that the application of the guidelines to only those defendants who exercise their right to trial violates the Constitution. Nine of the 13 co-defendants agreed to cooperate with the government, and their sentences were “obviously the result of leniency and [were] not relevant to the present constitutional inquiry.” The remaining four co-defendants received sentences comparable to defendants’ sentences. U.S. v. Devine, 934 F.2d 1325 (5th Cir. 1991).
5th Circuit remands to determine whether downward departure for co-defendant created inequitable disparity. (716) Defendant complained of the gross disparity between his five-year sentence and the one-year sentence his co-defendant received after a downward departure for substantial assistance. He maintained that he and his co-defendant were equally involved in the offense, but that he had less to offer the government because he knew less than his co-defendant. Defendant contended that he received a heavier sentence because he did not have as many bargaining chips as his co-defendant. The 5th Circuit could not determine from the record whether there was any merit to this complaint, and remanded the case to the district court to address this question. U.S. v. Melton, 930 F.2d 1096 (5th Cir. 1991).
5th Circuit holds that lesser sentence given co-defendant is not grounds to challenge sentence. (716) Defendant argued that the sentencing judge treated him differently than a co-defendant. However, defendant did not argue that his sentence exceeded the guidelines. “Under such circumstances, a defendant cannot base a challenge to a sentence ‘solely on a lesser sentence given by the district court to his co-defendant.’” U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
5th Circuit rejects appeal which was based solely on fact that a co-defendant received a lesser sentence for same conduct. (716) Defendant received two concurrent 20 year sentences for conspiracy to manufacture methamphetamine. His co-defendant, who was convicted of the same charges received two concurrent two year terms. The defendant appealed, claiming that the district court abused its discretion in imposing this particular sentence. The 5th Circuit affirmed, finding no abuse of discretion. So long as the guidelines are correctly applied, and an appropriate sentence is imposed, a judge is not obligated to consider co-defendant’s sentences when sentencing a defendant. A challenge to a sentence cannot, as was the case here, be based solely upon the lesser sentence given to a co-defendant. U.S. v. Boyd, 885 F.2d 246 (5th Cir. 1989).
6th Circuit approves guideline sentence despite lighter sentences received by co-conspirators. (716) Defendant was convicted of conspiracy to produce and traffic in fraudulent identification documents. He argued that his within-guideline sentence of 63 months was substantively unreasonable considering the differing sentences of his co-defendants. The Sixth Circuit affirmed, noting that defendant recruited three members into the conspiracy, which doubled the conspiracy’s size. He not only sold fraudulent documents himself but also utilized the vast array of digital templates and produced fraudulent documents. Further, he helped move the entire operation from one apartment to another. He did all this in the approximately six-week span that he was involved in the conspiracy. Additionally, although Reyes-Gonzalez was apparently the leader of the operation, unlike defendant, Reyes-Gonzalez accepted responsibility for his actions, and pled guilty. Moreover, defendant had twice entered the U.S. illegally after being deported. The court found that he was at a high risk of re-offending and that there was a great need to protect the public from further crimes. U.S. v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012).
6th Circuit finds no sentencing disparity where co-defendant accepted responsibility and co-operated. (716) Defendant argued that his 97-month sentence was substantively unreasonable compared to the sentences of co-conspirator Zaccagnini (60 months) and co-conspirator Armstrong (42 months). The court determined that Armstrong’s culpability was similar to defendant’s, but noted that Armstrong accepted responsibility for his conduct and provided very complete cooperation from early on in the investigation. The district court attempted to account for this difference by choosing defendant’s sentence from the advisory range that Armstrong would have confronted had he not cooperated. Furthermore, the district court already had given defendant a four-level reduction for being a minimal participant, rather than the two-level minor participant reduction recommended by the PSR, to guard against a disparity claim. A disparity that results from a co-conspirator’s cooperation is not unwarranted, and the Sixth Circuit rejected defendant’s argument. U.S. v. Mitchell, 681 F.3d 867 (6th Cir. 2012).
6th Circuit upholds harsher sentence for shooting bank manager during robbery. (716) Defendant and three accomplices committed an armed bank robbery. During the robbery, defendant shot the assistant bank manager in the head, gravely injuring her. The district court found that defendant’s act constituted attempted first-degree murder, and departed upward. Defendant challenged the substantive reasonableness of his sentence based on the disparities between his 60-year sentence and the 211-, 162- and 60-month sentences received by his accomplices. However, the district court accounted for the disparity by explaining that defendant had separated himself from the rest of his co-defendants by firing the shotgun at the bank manager’s head. The court also noted the co-defendants’ acceptance of responsibility and/or cooperation with authorities. The Sixth Circuit held that the district court did not abuse its discretion when it sentenced defendant more severely than his co-defendants. U.S. v. Stewart, 628 F.3d 246 (6th Cir. 2010).
6th Circuit says defendant failed to rebut presumption that guideline sentence was reasonable. (716) Defendant argued that his within-guidelines sentence of 34 months was substantively unreasonable. He noted that there was a disparity between the sentence he received and the sentences given his two co-defendants who both pled guilty and were sentenced before defendant. The Sixth Circuit found no error. Tran, the most culpable, received a 46-month sentence, while Walker, who was the least culpable, received a 12-month sentence. Although defendant argued that his sentence should have been closer to Walker’s this argument did not demonstrate an abuse of discretion. Furthermore, “the need to avoid unwarranted sentence disparities” mentioned in 18 U.S.C. § 3553(a)(6) refers to national disparities among many defendants with similar criminal backgrounds convicted of similar criminal conduct, not to disparities between one individual’s sentence and another individual’s sentence, despite the fact that the two are co-defendants. Defendant failed to rebut the presumption that the court’s decision was substantively unreasonable. U.S. v. Bacon, 617 F.3d 452 (6th Cir. 2010).
6th Circuit remands where sentence was twice as long as more culpable co-conspirator. (716) Defendant and her boyfriend, White-Barber, shipped packages containing OxyContin to a co-conspirator in Michigan. She challenged the procedural reasonableness of her sentence based on the district court’s failure to consider her argument that she received a longer sentence than White-Barber, even though he played a much larger role in the conspiracy. The government pointed to several factors that could arguably explain the sentencing disparity, but could not point to any part of the sentencing transcript that showed that the district court ever considered these issues. Nowhere in the sentencing hearing did the judge discuss why sentencing defendant to twice as long as White-Barber was appropriate. It was uncontested that defendant was not the mastermind of the conspiracy and that White-Barber was more involved. While the government offered a reasonable explanation for the disparity, the district court cannot delegate its obligation to “state in open court” the reasons for its imposition of a particular sentence. U.S. v. Wallace, 597 F.3d 794 (6th Cir. 2010).
6th Circuit holds that sentencing disparity did not make defendant’s sentence unreasonable. (716) Defendant was one of several police officers convicted of offenses stemming from excessive use of force during an arrest. Defendant challenged his 33-month sentence as substantively unreasonable, contending it resulted in an unwarranted sentencing disparity with his co-defendants. The Sixth Circuit found no disparity, and held the sentence was reasonable. Section 3553(a)(6) is concerned with national disparities between defendants with similar criminal conduct, not disparities between co-defendants. Moreover, there were several factors which warranted the differing sentences. Defendant was found guilty of more offenses than any of his co-defendants, and he was the only defendant found guilty of deprivation of rights under color of law. The disparity between the co-defendants’ sentences was reasonable. Moreover, the district court was well aware of the disparities, and found defendant to be “most culpable.” U.S. v. Carson, 560 F.3d 566 (6th Cir. 2009).
6th Circuit upholds reliance on sentencing disparity with co-defendant as grounds for downward variance. (716) Defendant and co-defendant Davis were found guilty of drug and money laundering counts, and both were originally sentenced to 360 months. On appeal, the court reversed the denial of Davis’ motion to suppress evidence and remanded for a determination of whether Davis’ convictions should stand. In addition, both defendants’ sentences were vacated for resentencing in light of Booker. Davis reached a sentencing agreement which he pled guilty to only one count, and was sentenced to 96 months. The district court then sentenced defendant to 120 months, relying primarily on the need to avoid an unwarranted disparity between defendant’s and Davis’ sentences. The Sixth Circuit held that defendant’s sentence was reasonable. The district court was not unreasonable in considering Davis and defendant as having been found guilty of similar conduct. Although the suppression of the evidence may have weakened the government’s case against Davis, it was reasonable, particularly in light of the other evidence against Davis, for the court to find Davis just as culpable as defendant. U.S. v. Presley, 547 F.3d 625 (6th Cir. 2008).
6th Circuit finds court considered need to avoid unwarranted sentencing disparities. (716) Defendant argued that the district court neglected to address the need to avoid unwarranted sentencing disparities among defendants with similar records. He cited three local district court cases in Michigan where the defendants were sentenced to less time than defendant. The Sixth Circuit found no error. Section 3553(a) requires the district court to “consider” seven factors and it is the district court’s task to balance those factors. At sentencing, the court acknowledged its responsibility to understand what “comparable individuals in comparable circumstances have received in the past.” Moreover, the court did act to avoid unwarranted sentence disparities when it reduced the PSR’s recommended enhancements for the number of pornographic images defendant possessed. U.S. v. Blackie, 548 F.3d 395 (6th Cir. 2008).
6th Circuit says 15-month sentence not unreasonable simply because co-defendant received probation. (716) Defendant was convicted of filing false income tax returns, and was sentenced to 15 months’ imprisonment. He argued that the sentence was unreasonable because the court failed to adequately consider the disparity between defendant’s 15-month sentence and his niece’s sentence of probation. The Sixth Circuit found no error because defendant and his niece were not similarly situated. Defendant and his niece were both convicted of three counts of tax fraud, but defendant’s criminal history placed him in Category IV and the niece’s criminal history placed her in Category I. Further, the niece received an acceptance of responsibility reduction and pled guilty to her crime, while the district court found that defendant had not accepted responsibility for his crime. U.S. v. Carter, 510 F.3d 593 (6th Cir. 2007).
6th Circuit has no discretion to review where district court found basis for sentencing disparity. (716) The district court refused to grant defendant a downward departure to account for the disparity between his sentence and the 41-month sentence Tucker, his co-conspirator, received. In urging the court to depart, defendant argued both that Tucker was more culpable than he and that an unjustified disparity resulted from the government’s decision not to charge Tucker with possessing a firearm in violation of § 924(c)(1). A district court may consider disparity in the sentencing of co-defendants, but a departure intended to achieve uniformity in the sentencing of co-defendants is not appropriate when a basis for the disparity exists. The Sixth Circuit found no error. It was clear from the record that the district court recognized its discretion to consider disparity as a basis for departure, but concluded that departure was not warranted. The court found the disparities were justified, noting the difference between finding firearms in a dresser drawer and carrying a loaded firearm during a high-speed chase involving the police. In addition, the court explained that Tucker’s cooperation was an appropriate basis for the difference in sentences. Tucker received not only an adjustment for acceptance of responsibility, but also a § 5K1.1 departure for his substantial assistance. Because the district court properly recognized its authority, the appellate court could not review the decision not to depart downward. U.S. v. Walls, 293 F.3d 959 (6th Cir. 2002).
6th Circuit rejects departure for disparity, coercion and diminished mental capacity. (716) Although defendant had a guideline range of 18-24 months, the district court departed downward to a sentence of probation so that defendant would not serve a longer sentence than his co-defendant who masterminded the offense. The Sixth Circuit rejected sentencing disparity as a basis for a downward departure. In addition, the facts did not support a departure under § 5K2.12 for coercion or under § 5K2.13 for reduced mental capacity. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).
6th Circuit refuses to review sentencing disparity claim. (716) Defendant was sentenced to 37 months after a jury found him guilty of count 1 of the indictment. He argued that he should have received a lighter sentence than a co-defendant who was found guilty of both counts 1 and 2. The Sixth Circuit held that it lacked discretion to review the sentencing disparity claim. An appellate court lacks jurisdiction over a claim that the sentencing court refused to depart downward. However, it may review a sentence based on a legal error, even if within the guidelines range. Defendant did not present any legal error to review. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).
6th Circuit reverses district court’s failure to sentence defendant for 2500 kilograms he conspired to import. (716) The district court found that defendant had conspired to import and distribute 2500 kilograms of cocaine, but sentenced him on the basis of only 2.5 to 3 kilograms. The court did this because most of defendant’s co-conspirators, who were convicted and sentenced nine months earlier, were only sentenced on the basis of the smaller quantity of cocaine. At the time they were sentenced, the government was unable to prove the conspiracy to import and distribute the larger quantity of cocaine. The 6th Circuit re-versed, holding that the guidelines do not give a district court discretion to ignore its findings concerning a defendant’s relevant conduct. To the extent the district court actually was departing downward in order to equalize the sentences of co-conspirators, the downward departure was unjustified. Under 6th Circuit law, a district court may not engage in “equalization departures.” U.S. v. Gessa, 971 F.2d 1257 (6th Cir. 1992) (en banc).
6th Circuit rejects disparate sentences as grounds for departure. (716) Defendant claimed that his sentence was excessive because it was greater than that imposed on other individuals involved in related activities. Relying on Circuit precedent, the 6th Circuit rejected this claim. A district court may not depart downward under the guidelines for the purpose of harmonizing the sentences received by co-defendants. Because defendant’s sentence was within the guideline range, to bring defendant’s sentence into conformity with his co-defendants would require a downward departure. Defendant’s co-defendants were not similarly situated. One co-defendant was not as involved in the fraud scheme and agreed to cooperate and make significant restitution. Another co-defendant received the same sentence as defendant. Moreover, defendant was the mastermind behind the scheme. U.S. v. Romano, 970 F.2d 164 (6th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Perkins, 89 F.3d 303 (6th Cir. 1996).
6th Circuit rejects downward departure based on defendant’s ownership of business. (716) Defendant pled guilty to 18 counts of knowing discharge of pollutants into a public sewer system. The district court departed downward and imposed probation and community service because defendant owned another business employing 26 people, and the business might fail if defendant were incarcerated. The 6th Circuit reversed, finding this was an improper ground for a downward departure. The court found “nothing special” about defendant’s circumstances. “The very nature of the crime dictates than many defendants will likely be employers, whose imprisonment may potentially impose hardships upon their employees and families.” The fact that a “harsh” fine had already been imposed was also not a ground for departure from the guidelines, since the guidelines have already taken fines into consideration. Finally, the fact that the downward departure made his sentence “uniform” with his co-defendants did not justify the departure, since there was a basis for the disparity. The co-defendants pled guilty to negligent, rather than knowing, violations of the Clean Water Act, and received reductions based on their minor roles in the offense. U.S. v. Rutana, 932 F.2d 1155 (6th Cir. 1991).
6th Circuit permits downward departure to bring sentence “in line” with co-defendants’ sentences, but reverses as to extent. (716) The 6th Circuit found that district courts are not precluded as a matter of law from departing from the guidelines in order to conform one conspirator’s sentence to the sentence imposed on his co-conspirators. In this case, the great disparity between defendant’s guidelines sentence and the his co-defendants’ sentences justified a departure. Defendant’s guideline range was 151 to 188 months, whereas the codefendants received sentences of 60, 48 and 30 months, respectively, based on their substantial assistance to the government. However, departing downward to 42 months was unreasonable. The co-defendants received their substantial departures based upon their extensive cooperation with authorities. Defendant not only failed to cooperate, he obstructed justice by lying to DEA agents and at trial. The case was remanded for resentencing. U.S. v. Nelson, 918 F.2d 1268 (6th Cir. 1990).
6th Circuit finds disparate sentences among codefendants insufficient to show that defendants were penalized for going to trial. (716) In a pre-guidelines case, four defendants were charged with various counts of bribery and conspiracy. Two of the defendants exercised their right to a jury trial and were convicted. Defendants argued that the district court abused its discretion by sentencing them to a longer term than their codefendants because defendants exercised their right to a jury trial. The 6th Circuit agreed that it is improper to penalize a defendant who exercises his or her right to plead not guilty and go to trial, but found that “[m]ere disparity in sentences is insufficient to show that the sentencing court penalized [defendants] for going to trial.” Since defendants’ sentences were within the statutory limits, the sentence was upheld. U.S. v. Frost, 914 F.2d 756 (6th Cir. 1990).
6th Circuit reverses downward departure made for purpose of harmonizing disparate sentences between codefendants. (716) The presentence reports assigned two codefendants the same offense level, except that it recommended that defendant receive a two point increase in his offense level for his leadership role. Defendant fell within criminal history category III, while his codefendant fell within criminal history category I. Codefendant was sentenced to 78 months. The district court made no explicit finding as to defendant’s leadership role in the offense, but apparently accepted the presentence report’s recommendations and determined that the guideline range for defendant was 97 to 121 months. The district court then departed downward and imposed a sentence of 87 months, noting that the departure was necessary to ensure “equality of sentencing among equal participants in a crime.” The 6th Circuit remanded the case for the district court to determine defendant’s leadership role in the offense. If the district court found that defendant did not play a leadership role in the offense, then it should reject the two point increase in defendant’s offense level, and sentence defendant accordingly. However, under no circumstances should it make a downward departure based solely on the sentence the codefendant received. U.S. v. Parker, 912 F.2d 156 (6th Cir. 1990).
6th Circuit reverses where disparate sentences resulted from inconsistent application of guidelines. (716) Four defendants engaged in a conspiracy to sell drugs. Two of the defendants were arrested when they sold drugs to an undercover agent, and a gun was allegedly found in their possession at the time of sale. At trial these two defendants were charged with carrying a firearm in relation to a drug trafficking offense. One defendant was acquitted and a mistrial was declared as to the other. The sentences of the two co-defendants not present at the sale were enhanced under guideline § 2D1.1(b)(1) for possessing a gun during a drug trafficking offense. The 6th Circuit reversed, ruling that the district court’s inconsistent application of the enhancement created a disparity which the guidelines seek to avoid, particularly when the enhancement is applied against two conspirators who did not commit the conduct and not against the conspirator who allegedly did commit the conduct. U.S. v. Williams, 894 F.2d 208 (6th Cir. 1990).
7th Circuit approves sentence at bottom of guidelines range. (716) Defendant was convicted of fraud in connection with a scheme to file false tax returns. The district court sentenced her to 51 months, the bottom of her 51-63-month guideline range. Defendant challenged the reasonableness of the sentence, noting that she was sentenced based on the intended losses and not the lower actual loss; that she had no role in selecting the tax refund amounts; that co-conspirator Robtrel received a much larger share of the profits; and that only 19.3% of the fraudulent returns were filed while she was a member of the conspiracy. The Seventh Circuit upheld the within-guidelines sentence as substantively reasonable. The district court expressly addressed defendant’s argument for a lower sentence based on her role compared to Robtrel’s, and in fact gave her a lower sentence. Defendant also claimed the court failed to give proper weight to her role as the primary caregiver to her two teenage sons and her teenage nephew. However, there were no “extraordinary hardships” here. Although defendant cared for her children and nephew, there was nothing to take this case out of the normal realm of hardship all children suffer when a caregiving parent is incarcerated. U.S. v. Williams-Ogletree, 752 F.3d 658 (7th Cir. 2014).
7th Circuit reverses for failure to consider disparities among similarly-situated defendants. (716) Defendant, a police officer, funneled towing business to certain tow truck companies in exchange for bribes. He was convicted of attempting to commit extortion. At sentencing, defendant asked the court to consider the sentence of Wodnicki, another former police officer whom defendant believed was similarly situated to him. The district court refused, believing it could only consider sentencing disparities if they were presented on a nationwide basis. The Seventh Circuit held that the district court erred by not understanding that it had discretion to consider defendant’s argument. Section 3553(a)(6) says a court may consider the need to avoid unwarranted disparities between similarly-situated defendants. While a district court does not have to discuss each of the § 3553(a) factors, it commits procedural error if it does not give “meaningful consideration” to the relevant factors in a defendant’s case. The error was not harmless because it was impossible to determine whether defendant would have received the same sentence absent the error. U.S. v. Prado, 743 F.3d 248 (7th Cir. 2014).
7th Circuit says federal court not required to consider disparities with state court sentences. (716) Defendant and others were members of a drug trafficking ring that sold heroin and crack. Defendant was a drug runner, or street-level distributor, for the organization. He argued on appeal that the district court failed to consider the sentencing disparities between himself and other runners who were prosecuted in state court. He claimed that the runners sentenced in state court received sentences between five and seven years, while he was sentenced to 320 months. The Seventh Circuit found that the district court addressed defendant’s claim and rightly rejected it. None of the state court defendants were convicted of conspiracy, and the state court appeared to have had limited evidence at its disposal in arriving at the runners’ sentences. More importantly, federal courts need not consider disparities with state court sentences. U.S. v. Block, 705 F.3d 755 (7th Cir. 2013).
7th Circuit finds co-conspirators were not similarly-situated so sentencing disparity was not unwarranted. (716) Defendant and two co-conspirators stole more than a half-million dollars from the bank where defendant worked as a teller. Defendant complained that she was treated more harshly than her co-conspirators, and thus, the court failed to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). One co-conspirator was sentenced to 18 months, and another was sentenced to 15 months. Defendant received a 57-month sentence. The Seventh Circuit found no error. Because the guidelines are based on national sentencing patterns, a district court necessarily considers the interest in consistency between similarly-situated defendants when it considers a properly calculated guidelines recommendation. Moreover, the difference between defendant’s sentence and those of her co-conspirators was not “unwarranted.” Defendant’s supervisory role in the offense and her perjury during her plea colloquy put her in a very different position from her co-conspirators. U.S. v. Grigsby, 692 F.3d 778 (7th Cir. 2012).
7th Circuit says disparity in co-conspirators’ sentences was not cruel and unusual punishment. (716) Three defendants were convicted of assorted drug offenses. The Seventh Circuit rejected one defendant’s argument that the disparity between his 180-month sentence and that of his co-conspirators (80 months and 181 months) constituted cruel and unusual punishment. This defendant’s PSR recommended a sentencing range of 262-327 months. The district court accepted the probation office’s recommendation, but then in its discretion, sentenced defendant below the minimum to 180 months. The district court indicated that it considered the disparity defendant complained of, but found it warranted in light of the seriousness of the offenses, defendant’s history, and the fact that he, unlike his co-defendants, had little to offer the government in terms of cooperation. The district court did not abuse its discretion. U.S. v. Jones, 696 F.3d 695 (7th Cir. 2012).
7th Circuit rejects sentencing disparity argument. (716) Defendant was convicted of fraud charges based on his participation in an international scheme to defraud online auction bidders. His guideline range was 168-210 months, and the district court imposed a 180-month sentence. Defendant argued that his sentence was unconstitutionally disparate from the sentences of his co-defendants. The Seventh Circuit disagreed, and upheld the guidelines sentence. The cause of any apparent disparity lay in defendant’s high offense level, high criminal history category, and in his not receiving a §5K1.1 assistance reduction. The government elected not to make a §5K1.1 motion because he had earlier received a deal, been deported, and then immediately resumed similar offensive conduct, using aliases that he had hidden from the government. The sentences for other schemers were lower than defendant’s because those defendants either received cooperation reductions, had lower criminal history categories, or played a smaller role in the overall scheme than defendant. U.S. v. Cerna, 676 F.3d 605 (7th Cir. 2012).
7th Circuit approves above-guidelines sentence in dog-fighting case. (716) Three defendants pled guilty to a dog fighting conspiracy. They each had a recommended guideline range of zero to six months, but were sentenced, respectively, to 16, 18 and 24 months of imprisonment. The Seventh Circuit upheld the above-Guidelines sentences as reasonable. The panel did not express an opinion on the court’s apparent belief that the Guidelines are per se deficient with respect to large dog fighting conspiracy. However, the court’s sentencing considerations – the number of dogs, the number of fights, defendant’s leadership role in the enterprise and the duration of the misconduct – were properly considered as part of the “nature and circumstances of the offense” under 18 U.S.C. § 3553(A)(1). The court also appropriately applied the “extraordinary cruelty” departure described in note 2 to § 2E3.1 to defendant Addison in connection with his electrocuting a defeated dog. Although Addison received a longer sentence than a non-appealing co-conspirator who participated in the same electrocution, the other conspirator was a “comparatively peripheral” member of the conspiracy. There is nothing per se improper about a sentencing disparity among co-conspirators. U.S. v. Courtland, 642 F.3d 545 (7th Cir. 2011).
7th Circuit affirms refusal to consider dismissal of charges against co-conspirator. (716) Defendant argued that the court erred at sentencing by ignoring the fact that his co-conspirator was never convicted. Subparagraph (a)(6) of § 3553 requires courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of the same conduct.” The Seventh Circuit held that in order for subparagraph (a)(6) to be applicable, there must be disparate sentences not among co-defendants or co-conspirators, but among judges or districts. There was no sentencing disparity in this case between defendant’s sentence and the co-conspirator’s sentence, because the latter did not even exist. The panel also rejected defendant’s claim that it could consider the co-conspirator’s lack of conviction under § 3553(a). Holding otherwise would deprive prosecutors of the opportunity to exercise any meaningful prosecutorial discretion in co-conspirator cases. U.S. v. Scott, 631 F.3d 401 (7th Cir. 2011).
7th Circuit finds court properly considered potential disparities with co-conspirators. (716) Defendant was convicted of participating in a conspiracy to distribute heroin and other drugs. The district court imposed a within-Guidelines 300-month sentence. On appeal, defendant argued that the district court erred in failing to consider unwarranted sentencing disparities between him and his co-conspirators. The Seventh Circuit held that a court that sentences within a properly calculated Guidelines range necessarily gives weight to avoiding unwarranted disparities because that is one of the goals of the Guidelines. The court also found that defendant was not similarly situated to his co-conspirators because defendant was sentenced as a career offender and his co-conspirators were not, defendant did not cooperate with the government, and defendant was facing a charge of first-degree murder. U.S. v. Turner, 604 F.3d 381 (7th Cir. 2010).
7th Circuit says defendant’s greater culpability warranted stiffer sentence than co-conspirator received. (716) Defendant argued that there was an unwarranted disparity between his sentence (55 months) and his co-conspirator’s (37 months) because their conduct was similar. The Seventh Circuit rejected that argument as wrong on the law and wrong on the facts. Defendant’s conduct was more culpable than his co-conspirator – defendant abused his position as the lawyer for a charity to pull off one of the frauds. It was defendant’s own law firm and its trust account that was the locus of the fraud. Moreover, defendant obstructed justice by failing to turn over documents to the grand jury. The district court did not err in meting out a stiffer sentence to defendant than his co-conspirator. U.S. v. Powell, 576 F.3d 482 (7th Cir. 2009).
7th Circuit says sentences were not unreasonably high despite lower sentence of co-conspirators. (716) Defendants were police officers convicted of civil rights violations based on their participation in a mob beating of a man suspected of stealing a badge. They argued that their sentences (188 months, 188 months and 208 months) were unreasonably high, noting that three co-conspirators all received considerably shorter sentences. See 18 U.S.C. § 3553(a)(6). The Seventh Circuit held that defendants’ sentences were not unreasonably high. The disparity was justified by material differences in the offenders’ conduct and acceptance of responsibility. Defendant Masarik was sentenced at the top of his range (155-188 months)—that sentence was entitled to a presumption of reasonableness. Defendant Spengler’s sentence of 188 months exceeded the top of his 121-151 month range, but was reasonable under Gall: the judge properly deemed Spengler the instigator. Defendant Bartlett’s sentence of 208 months likewise exceeded this range of 151-188 months. Remand was required for Bartlett because it was unclear whether the judge was aware that he was varying from the Guidelines. U.S. v. Bartlett, 567 F.3d 901 (7th Cir. 2009).
7th Circuit finds no unreasonable disparity between 457-month sentence and accomplice’s 401-month sentence. (716) Defendant and his accomplice used automatic weapons to commit a bank robbery. During their escape, they set fire to the getaway car and shot at a police officer. Defendant’s accomplice agreed to plead guilty to the federal offenses of bank robbery and using a firearm during and in relation to a crime of violence and to the state offense of attempted manslaughter. Under the agreement, the accomplice’s state and federal sentences amounted to 401 months, including a 120-month mandatory sentence for use of a firearm during the bank robbery. Defendant was convicted of bank robbery, using a firearm during and in relation to a crime of violence, and arson (for burning the getaway car), but he was acquitted in state court of attempted manslaughter. At sentencing, the district court found that defendant had used a fully automatic weapon, even though it had not made that finding with respect to the weapon the accomplice used. That finding resulted in a 360-month mandatory sentence for using the firearm during the bank robbery. The district court sentenced defendant to 457 months’ imprisonment. The Seventh Circuit held that defendant’s sentence was not unreasonably disparate to his accomplice’s sentence, even if the accomplice’s state sentence were disregarded. U.S. v. Duncan, 479 F.3d 924 (7th Cir. 2007).
7th Circuit upholds disparity where defendant and co-defendant were not similarly situated. (716) Defendant argued that because he and Quinonez were similarly situated in the drug conspiracy, his sentence should have been no greater than that of Quinonez. The Seventh Circuit disagreed. The district court found and clearly explained that defendant and Quinonez were not similarly situated. Defendant had a close relationship with Alfaro, the drug buyer and a principal member of the conspiracy. Defendant was entrusted with making the final delivery of drugs to Alfaro. In contrast, Quinonez had no contact or other dealings with Alfaro or any other principal member of the conspiracy. In addition, defendant’s degree of cooperation with the government was less than that of Quinonez. U.S. v. Mendoza, 457 F.3d 726 (7th Cir. 2006).
7th Circuit holds that 1000-month sentence for heroin dealer was unreasonable. (716) Defendant was the member of a gang that sold crack cocaine from a housing project in Chicago. Defendant was not directly involved in the crack-dealing scheme. His main territory was in “K-Town,” several miles to the west, and his primary product line was heroin. However, at one point, he received permission to deal heroin out of the project. During one eight-week period in 2000, defendant sold about eight kilograms of heroin from this new location. In the current case, he pled guilty to five counts relating to heroin sales he made in 2002 from his house in K-Town. The district court imposed a 1000-month sentence, holding him responsible not only for the 110 grams of heroin involved in the 2002 counts of conviction, but also the eight kilograms of heroin he sold in 2000 at the housing project and the more than 15 kilograms of crack sold from the housing project. The Seventh Circuit found the 1000-month sentence was unreasonable. The connection between 2002 heroin sales and the sales counted by the court as relevant conduct was tenuous. The counts of conviction involved five sales of heroin in K-Town in the summer of 2002, two miles away from housing project and two years after defendant’s alleged involvement with the conspiracy there. The crack sales from the housing project were even more tenuously related to defendant’s 2002 heroin sales. Although defendant’s 2000 heroin sales may have benefited from the security and other organizational structure already in place there, this at most made the crack sales relevant conduct to the heroin sales that took place there in 2000. It did not make it relevant to defendant’s sale of heroin in K-Town in 2002. At most, defendant was responsible for about eight kilograms of heroin, which would result in a guideline range of 360 months to life. U.S. v. Bullock, 454 F.3d 637 (7th Cir. 2006).
7th Circuit rejects downward variance intended to reconcile sentence with that received by more culpable co-conspirator. (716) Defendant was involved with Wilkerson in a conspiracy to travel across state lines with the intent to engage in sexual conduct with a minor. Wilkerson was the one who made contact with the minors. The guideline range for defendant was 108-135 months, but the district court found that a sentence of 60 months was appropriate. The court expressed concern that defendant’s sentence be reconciled with the 68-month sentence provided to Wilkerson, who was the primary actor in the offense. However, Wilkerson pled guilty to the offenses and cooperated with the government in its prosecution of defendant. The Seventh Circuit remanded for resentencing. The comparison of co-defendants is not a proper application of the § 3553(a) mandate that a court minimize unwarranted disparities in sentences. Here, Wilkerson’s lower sentence was attributable to his decision to plead guilty and cooperate with the government. The corresponding reduction in his sentence as compared to a non-cooperating defendant is not an “unwarranted” disparity. Moreover, § 3553(a)’s concern with sentence disparity is not one that focuses on differences among defendants in an individual case, but is concerned with unjustified differences across judges or districts. U.S. v. Pisman, 443 F.3d 912 (7th Cir. 2006).
7th Circuit says disparity between co-defendants was not unwarranted. (716) Defendant was convicted of fraud charges stemming from his involvement in a kickback scheme. His guideline range was 33-41 months, and he received a 36-month sentence. Defendant noted that his co-conspirator, who pled guilty and testified against defendant, would have had a guideline range of 41-51 months but for his receipt of a substantial assistance departure, which reduced his sentence to 20 months. Because judges are supposed to reduce sentence disparity, see 18 U.S.C. § 3553(a)(6), defendant argued that his sentence was improper. The Seventh Circuit disagreed. Although defendant and his co-conspirator had similarly clean records before these convictions and engaged in similar conduct, “disparity” is justified by legitimate considerations, such as rewards for cooperation. Booker did not change this. U.S. v. Boscarino, 437 F.3d 634 (7th Cir. 2006).
7th Circuit rejects upward departure given disparity between sentence imposed and maximum sentence calculated by probation department. (716) Just prior to defendant’s plea colloquy, the U.S. approved a plea agreement calling for a 57-month sentence. However, defendant was dissatisfied with the government’s refusal to move for a downward departure for his substantial assistance. Disregarding the court’s warning that a blind guilty plea could result in a more severe sentence, he opted to plead guilty on the advice of counsel. Based on a higher loss amount than contemplated, the probation department recommended an offense level that would have resulted in a sentence of 70-87 months. During the plea colloquy and interviews with the presentence investigator, defendant made inaccurate statements regarding his finances. However, these statements did not obstruct justice. Between the time of his decision to reject the plea agreement and his sentencing, neither the prosecution nor the court learned of additional aggravating factors that would constitute grounds for an upward departure. All of the factual basis for the upward departures had come to light prior to the plea colloquy. Nonetheless, at the sentencing the district court departed upward and imposed a prison sentence of 262 months, triple the maximum sentence recommended by the probation department. Defendant’s co-conspirator was sentenced several weeks later to a 38-month term under a plea agreement. Based on all of these factors, the Seventh Circuit found that the court’s upward departure, even if made on proper grounds and adequately supported by factual findings, resulted in a sentence that unreasonably exceeded the applicable guidelines and amounted to an abuse of discretion. The final offense level calculation of 27, which corresponded to a sentence of 70 to 87 months, adequately reflected the seriousness of and would provide a just punishment for defendant’s offenses, and would avoid an unwarranted disparity between the sentences of defendant and his co-conspirator. U.S. v. Carroll, 346 F.3d 744 (7th Cir. 2003).
7th Circuit says co-defendant’s unjustifiably lenient sentence was not grounds for downward departure. (716) Defendants complained that their respective sentences of 262 months and 240 months were unreasonably disparate from co-conspirator McGinnis’s “illegal” sentence of 60 months. However, “a disparity among co-defendants’ sentences is not a valid basis to challenge a guideline sentence otherwise correctly calculated.” This was true even though defendants were correct that McGinnis’s sentence was not arrived at properly. The judge purported to grant McGinnis a downward departure because of his age and infirmity, see U.S.S.G. § 5H1.1, but the judge had no authority to take this action because the mandatory sentence by statute was life imprisonment. See 21 U.S.C. § 841(b)(1)(A). The government did not appeal McGinnis’s sentence, and the fact that his punishment was unjustifiably lenient did not affect defendants’ sentences in any event. Their sentences were proper even though McGinnis’s was not. U.S. v. Simpson, 337 F.3d 905 (7th Cir. 2003).
7th Circuit holds that notice ten days before trial was not timely enough for one-point acceptance reduction. (716) On October 16, defendant’s counsel notified the government that defendant intended to plead guilty. However, defendant did not actually execute a plea agreement or enter a guilty plea until October 25, one day before his trial was scheduled to begin. The Seventh Circuit held that the district court did not err in ruling that defendant did not give notice of his intent to plead guilty sufficiently early to warrant an one-point acceptance reduction under § 3E1.1(b)(2). By the time defendant gave notice of his intent to plead guilty, ten days before trial, the government had already responded to defendant’s pre-trial motions and prepared a lengthy proffer in connection with a co-conspirator’s statements. The government also brought in witnesses, issued subpoenas, and made travel arrangements. The fact that defendant expressed his intent to plead guilty four days after the return of the second superceding indictment did not matter. There is no authority for the proposition that the timeliness of a plea should be measured in relation to the date on which the last indictment was returned. Finally, the fact that a co-defendant was awarded the reduction was irrelevant. U.S. v. Nielsen, 232 F.3d 581 (7th Cir. 2000).
7th Circuit holds that sentencing disparity among co-defendants was not cruel and unusual punishment. (716) The Seventh Circuit rejected defendant’s argument that his sentence was cruel and unusual punishment because it was longer than that of his co-defendants. First, while severe disproportionality in sentencing may lead to an Eighth Amendment violations, there is no constitutional guarantee of proportionality in non-capital cases. Second, whether defendant’s sentence was “disproportionate” to those of his co-defendants was not a pertinent question because sentencing takes into account factors other than the type of crime, such as a defendant’s criminal history and the specific circumstances of the crime. Here, the difference in sentences stemmed from differences in the defendants’ criminal histories and personal backgrounds, not from an Eighth Amendment violation. U.S. v. Cavender, 228 F.3d 792 (7th Cir. 2000).
7th Circuit upholds loss calculation despite different methodology used for co-conspirator. (716) Defendant engaged in “property flipping,” under which he would purchase inner city real estate at low prices and then create sham transactions designed to entice lenders to fund loans that exceeded the value of the property. He challenged the court’s loss calculation because his sentencing judge used a different methodology and different data than another judge used to sentence a co-conspirator. The other judge calculated loss by taking the value of the properties and subtracting that from the aggregate loan proceeds. At the time, the best evidence available for the value of the properties was their 1996 assessed values, which were then adjusted by 5% to reflect 1997 values. By the time defendant’s own sentencing took place, newer appraisals of the value of the properties were available. This produced a loss of about $1.4 million, while the earlier calculation found a loss of only $675,000. The Seventh Circuit held that the fact that a different judge reached a different calculation of loss did not undermine an otherwise valid calculation of loss under the guidelines. Co-defendants have no enforceable right to have sentences that are precisely congruent with one another. The only thing that matters is that the sentence complies with the guidelines, and defendant’s did. U.S. v. Haehle, 227 F.3d 857 (7th Cir. 2000).
7th Circuit has no jurisdiction to review claim that court should have been more lenient. (716) Defendant and his co-conspirators were convicted of impersonating an IRS agent. He argued that he should receive a shorter sentence for this offense than his co-defendants received, since he did not personally impersonate an IRS agent, but pled guilty solely because he was accountable for the actions of his co-defendants. However, defendant did not argue that his sentence was either a violation of law or an incorrect application of the guidelines. He merely argued that the court should have been more lenient. Section 3742 does not confer appellate jurisdiction to review a defendant’s claim that he was sentenced differently from his co-defendants for the same criminal conduct. See U.S. v. Hall, 212 F.3d 1016 (7th Cir. 2000); U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991). Thus, the Seventh Circuit found that it had no jurisdiction to review defendant’s claim that he should have been treated differently than his co-defendants. U.S. v. Coe, 220 F.3d 573 (7th Cir. 2000).
7th Circuit rejects departure based on disparity between defendant’s and co-conspirator’s sentences. (716) The district court ruled that the disparity between defendant’s sentence and his co-conspirator’s sentence was not a valid basis to depart downward. The Seventh Circuit agreed, noting that under U.S. v. McMutuary, 217 F.3d 477 (7th Cir. 2000), a justified disparity can never serve as a basis for a departure from the guidelines. Moreover, a sentencing court can consider an unjustified disparity only in those cases where the disparity exists between defendant’s sentence and other similar sentences imposed nationwide. Defendant’s sentence here was the result of a straightforward application of the guidelines. Even if he were able to show a disparity between his sentence and his co-conspirator’s sentence, he could not show that his sentence was disparate from the sentences of defendants similarly convicted throughout the U.S. U.S. v. Brumley, 217 F.3d 905 (7th Cir. 2000).
7th Circuit says sentencing disparity was justified. (716) Defendant complained that the attribution of 42 grams of cocaine to him but not his co-conspirator resulted in an unfair sentencing disparity. However, the Seventh Circuit noted that a disparity among co-defendants’ sentences is not a valid basis to challenge a guideline sentence otherwise correctly calculated. Furthermore, Dixon was an assistant and not the leader of the organization, Dixon pled guilty pursuant to a plea agreement and cooperated with authorities, and Dixon had a lesser criminal history. Such factors justify a disparity between the sentences of co-defendants. U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000).
7th Circuit rejects dicta in Meza suggesting unjustified sentencing disparity can be grounds for departure. (716) In U.S. v. Meza, 127 F.3d 545 (7th Cir. 1996), the Seventh Circuit held that justified disparities between the sentences of co-defendants (ones resulting from a proper application of the guidelines) could never serve as a basis for a departure, but suggested that unjustified disparities could potentially serve as a departure factor. In the present case, the disparity was unjustified because co-defendant Brown received an improper departure below the statutory minimum sentence.) The Seventh Circuit ruled that sentencing disparities between co-defendants, whether justified or unjustified, ordinarily should not be considered in the decision to depart. The Sentencing Commission intended the Guidelines to eliminate unwarranted disparities in sentencing nationwide. As such, a sentencing court may only consider an “unjustified disparity” when a sentence is “unjustified” in comparison to the sentences of all other individuals nationwide for similar criminal conduct. However, in certain circumstances, such as when an unjustified disparity is created by the abuse of prosecutorial discretion, the disparity may be a factor in determining whether to depart. U.S. v. McMutuary, 217 F.3d 477 (7th Cir. 2000).
7th Circuit holds that sentencing disparity was justified by cooperation, role, firearm, minors, and obstruction. (716) Defendant argued that the sentencing judge abused his discretion when he refused to grant him a downward departure based upon the allegedly unjustified disparity between his and Conway’s sentences. The Seventh Circuit ruled that the sentencing disparity was justified. Defendant’s criminal activity was far more serious than Conway’s. Conway pled guilty pursuant to a plea agreement and cooperated with law enforcement authorities by assisting in the investigation and testifying against co-defendants. Thus he received a total offense level of 23. Defendant, however, was the leader of a large drug conspiracy, refused to cooperate with authorities, used a firearm during a drug transactions, used minors to sell and distribute drugs, and threatened potential witnesses. Moreover, defendant was an active participant in the conspiracy for more than four years, while Conway participated for only two years. Thus, defendant received an offense level of 43. U.S. v. Hall, 212 F.3d 1016 (7th Cir. 2000).
7th Circuit rejects departure from mandatory minimums as remedy for sentencing disparity. (716) Defendant hired two men to burn his restaurant. The two arsonists pled guilty to arson charges. One arsonist, a career criminal who actually started the fire, was sentenced to seven years. The other man, who negotiated the deal for defendant, delivered the first arsonist to the scene and acted as a getaway driver, received a sentence of only 10 months. Defendant refused to admit his guilt and was convicted by a jury of arson and mail fraud charges. The arson charge carried a mandatory minimum sentence of seven years, and the violation of 18 U.S.C. § 844(h) (use of a fire to commit a federal felony) carried a mandatory consecutive 10-year term. The district court found that the great disproportionality of the sentences would make a 17-year sentence patently unfair and unjust, and imposed a 10-year sentence on defendant. The Seventh Circuit, although also concerned by the sentencing disparity, found the departure from the statutory minimum not permitted by law. The court suggested that the problem was caused by the lenient plea bargains offered by the government. The court suggested that on remand, the district court and the government explore whether “some option still remains with the government in the exercise of its prosecutorial discretion.” U.S. v. Zendeli, 180 F.3d 879 (7th Cir. 1999).
7th Circuit rejects departure based on sentencing disparity, community service and family. (716) The district court departed downward on three principal grounds: (1) to maintain some reasonable parity with a co-conspirator’s sentence; (2) to recognize the service that defendant had rendered to the community as a skilled and dedicated nurse; and (3) to recognize defendant’s extraordinary family circumstances. The Seventh Circuit remanded because the first two grounds were improper, the first in all circumstances and the second in the circumstances of this case. The third ground was also dubious. When two accomplices receive different sentences in accord with the guidelines, a court may not depart to preserve parity between the sentences. Although community service can be a ground for departure, in this case, it was based on service provided by the very businesses defendant used to violate federal law. As for the third ground, defendant was the single mother of a 12-year old child with learning problems that defendant assisted her in overcoming. Two experts gave unrebutted testimony that the learning problems would be aggravated by defendant’s absence. Nonetheless, the Seventh Circuit refused to affirm the sentence, since it did not know whether the judge would have departed on the basis of extraordinary family circumstances alone. U.S. v. Stefonek, 179 F.3d 1030 (7th Cir. 1999).
7th Circuit cannot review judge’s refusal to depart based on disparate treatment. (716) Defendants contended that the trial judge wrongly believed that he lacked the ability to depart because of the defendants’ disparate treatment compared to other participants in their fraud schemes. The Seventh Circuit disagreed. These other participants cooperated with the government and the judge stated that a downward departure would undermine efforts to reward individuals for cooperating with the government. Although the judge did comment on congressional intent to limit the discretion of judges, the judge explained his refusal, as opposed to his inability, to depart. The judge’s exercise of his discretion barred appellate review. U.S. v. Mankarious, 151 F.3d 694 (7th Cir. 1998).
7th Circuit refuses to review sentence based on disparity claim. (716) Defendant pled guilty to drug conspiracy charges. He argued that his 192 month sentence violated due process and equal protection and that it was irrationally disproportionate to the 121 month sentences of co defendants who engineered the deal. The Seventh Circuit rejected the claim. Nothing in the § 3742(a) allows review of a sentence imposed in conformity with the guidelines on the ground that a co defendant was treated differently. Defendant’s sentence was higher because he was subject to a 20 year mandatory minimum based on the amount of drugs involved and the fact that this was a second offense. The district court departed to a 192 month sentence based on the government’s § 5K1.1 motion. Defendant was essentially challenging the court’s refusal to depart even further downward than it did. This decision is not reviewable. U.S. v. Rios Calderon, 80 F.3d 194 (7th Cir. 1996).
7th Circuit refuses to review failure to depart based on sentence disparity. (716) Defendant argued that the district court erroneously concluded that it could not depart downward based on the disparity between his own 102-month sentence and two conspirators who received 16 and 12 month sentences. The Seventh Circuit held that it lacked jurisdiction to review the court’s refusal to depart where that refusal reflects an exercise of the judge’s discretion. Moreover, disparity in sentences, by itself, is not a basis for a departure. U.S. v. Austin, 54 F.3d 394 (7th Cir. 1995).
7th Circuit rejects disparity of sentence as grounds for downward departure. (716) Defendant complained that the ringleader of a conspiracy received only a 19-month sentence while defendant, who was allegedly less culpable, received a 46-month sentence. The Seventh Circuit upheld defendant’s sentence for several reasons. First, defendant never raised this issue below and therefore waived it. Second, even if he raised the issue below, a court’s discretionary refusal to depart downward is not reviewable on appeal. Finally, a disparity between co-defendants’ sentences is not a valid basis to challenge a properly calculated guideline sentence. The discrepancy in sentences was based on the two defendants’ conduct. The leader clearly demonstrated acceptance of responsibility, while defendant obstructed justice by committing perjury at trial. U.S. v. Dillard, 43 F.3d 299 (7th Cir. 1994).
7th Circuit upholds 30-year sentence for drug courier despite 12-year sentence for kingpin. (716) Defendant, a drug courier whose involvement in a drug conspiracy ended early, received a 360-month sentence, while the admitted kingpin of the conspiracy received a 144-month sentence and a major supplier of the conspiracy received a 60-month sentence. The district judge remarked that in his 20 years on the bench, he had never faced a more draconian situation. Nonetheless, the judge believed he lacked authority to depart and refused to do so. The 7th Circuit agreed that the district court had no authority to depart downward. What compelled defendant’s lengthy sentence was his status as a career offender. He had three prior drug convictions. Although the other two defendants’ involvement was undeniably more extensive, they lacked the record to trigger the career offender provisions. U.S. v. Betts, 16 F.3d 748 (7th Cir. 1994), abrogated on other grounds by U.S. v. Mills, 122 F.3d 346 (7th Cir. 1997).
7th Circuit refuses to consider claim that co-defendants received more lenient sentences. (716) Defendant argued that his due process rights were violated when he received various sentence enhancements under the guidelines. As a result of these enhancement, defendant argued that his sentence was excessive in comparison to those of similarly situated co-defendants. The 7th Circuit refused to entertain the claim. An appellate court cannot disturb a sentence solely on the ground that another defendant was sentenced differently. The court’s review was limited to defendant’s claim that his sentences, standing alone, was improperly calculated. U.S. v. Colello, 16 F.3d 194 (7th Cir. 1994).
7th Circuit attributes 15 kilograms to defendant even though a co-conspirator was sentenced for only five kilograms. (716) The 7th Circuit affirmed attributing 15 kilograms of cocaine to defendant even though his co-conspirator was held responsible for only five kilograms. Defendant and his co-conspirator agreed to supply an undercover agent with 10 to 15 kilos of cocaine weekly. Later, defendant told the agent that they had all 15 kilograms of cocaine ready for the agent to pick up. The co-conspirator confirmed after his arrest that defendant had solicited his assistance in obtaining 15 kilograms. However, there was no rational basis for attributing only five kilograms to the co-conspirator. The rationales advanced by the government, the co-conspirator’s acceptance of responsibility and his cooperation, were not proper considerations at that stage of the guideline process. Nonetheless, the improper sentencing of his co-conspirator did not give defendant a ground for complaining about his proper sentence. U.S. v. Salazar, 983 F.2d 778 (7th Cir. 1993).
7th Circuit affirms refusal to depart from mandatory minimum sentence despite unfairness of sentence. (716) All of defendant’s more culpable co-conspirators pled guilty and provided valuable assistance to prosecutors. Consequently they received sentences substantially less than the mandatory minimum 10 years. One co-conspirator was allowed to plead to a charge that did not carry a minimum term and received four years’ probation. However, defendant, the least culpable co-conspirator, went to trial and was convicted of charges carrying a 10-year minimum. The 7th Circuit affirmed, but stated that cases such as this involving a “sentencing inversion” are “troubling.” The district court was without authority under section 5K2.0 to depart downward from a minimum sentence prescribed by statute. Judge Bauer dissented, finding insufficient evidence of defendant’s guilt. U.S. v. Brigham, 977 F.2d 317 (7th Cir. 1992).
7th Circuit refuses to review sentence disparity between defendants with the same guideline range. (716) Defendant and his co-conspirator both had applicable guideline ranges of 97 to 121 months, but defendant received a 105-month sentence, while his co-conspirator received a 97-month sentence. The district court based the difference upon the co-conspirator’s relatively inactive role in the conspiracy, the government’s recommendation for a minimum sentence, his promise to cooperate with the government and the fact that he forfeited $109,000 cash along with half of the assets of his jewelry store. Defendant argued that he was being punished for exercising his right to trial and for his lack of funds to forfeit. The 7th Circuit refused to consider this argument. As the court had found in defendant’s first appeal, defendant’s disparity of sentence was eclipsed by the district court’s imposition of a sentence within the correct guideline range. U.S. v. Cea, 963 F.2d 1027 (7th Cir. 1992).
7th Circuit rules disparity between co-defendants who plead guilty and those who go to trial is not basis for resentencing. (716) Defendants, who were convicted after a trial, were each assigned a base offense level of 36 based on their involvement in 10 kilograms of heroin. They complained because each of their co-defendants who pled guilty were assigned a base offense level of 34 based upon between 3 and 9.9 kilograms of heroin. The 7th Circuit found that this disparity was not grounds for resentencing. The appropriateness of the base offense level turns on the quantity of drugs that was reasonably foreseeable to each defendant. A sentence which is mistaken, too draconian or too lenient as to one defendant does not grant a co-defendant the license to benefit from a lighter sentence nor does it impose the added burden of a tougher sentence. U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s introduction of evidence concerning other misconduct. (716) Defendant contended that the government breached his plea agreement by informing the district court at his sentencing hearing that he had violated his bond by being arrested for drunk driving, and that he had concealed his ownership of an automobile from his probation officer. The government used this information to justify its decision to suggest only a small downward departure. A co-defendant, who was responsible for distributing 4,500 pounds of marijuana, received a 15-year sentence, while defendant, who was responsible for 2,000 pounds of marijuana, received an 11-year sentence. The 7th Circuit rejected this contention. The fact that a co-defendant is treated differently is not a ground upon which the appellate court can review a sentence that conforms with the guidelines. U.S. v. Brown, 944 F.2d 1377 (7th Cir. 1991).
7th Circuit rejects claim based on disparity of co-defendant’s sentence. (716) Defendant argued that his 51-month sentence violated the 8th Amendment because a co-defendant received only a 37-month sentence for the same offense. The 7th Circuit found the argument to be without merit. It also rejected the government’s argument that it lacked jurisdiction to consider the claim. Although defendant did not argue that the district court misapplied the guidelines, he did argue that his sentence was imposed in violation of law, which gave the court appellate jurisdiction under 18 U.S.C. § 3742(a)(1). U.S. v. Evans, 924 F.2d 714 (7th Cir. 1991).
7th Circuit rejects claim based upon disparity of co-defendant’s sentence. (716) In a pre-guidelines case, defendant claimed that because he exercised his right to go to trial, he was subjected to a harsher sentence than his co-defendants who pled guilty. The 7th Circuit found no evidence in the record to support this argument. The trial judge presented reasonable and valid reasons for the sentence she imposed upon defendant. Defendant’s sentence fell far short of the statutory maximum for his offenses. U.S. v. James, 923 F.2d 1261 (7th Cir. 1991).
7th Circuit holds that guidelines apply to conspiracy that continued beyond effective date. (716) The 7th Circuit held that the sentencing guidelines applied to defendant’s conviction for conspiracy, which began prior to but continued beyond November 1, 1987. Defendant contended that this was unfair because his co-defendant was not sentenced under the guidelines and received a less severe sentence. The 7th Circuit found that since defendant failed to present any facts or legal authority for this position, he waived this argument. Moreover, the court had no appellate jurisdiction to review the sentence of a defendant properly sentenced on the ground that a co-defendant was improperly sentenced. U.S. v. Fazio, 914 F.2d 950 (7th Cir. 1990).
7th Circuit finds co-defendant’s lenient sentence not grounds for resentencing defendant. (716) Defendant was sentenced to 109 months after a trial. His co-defendant, who had a relatively “inactive” role, pled guilty and received a sentence of 97 months. The co-defendant had forfeited considerable cash and property to the government, while defendant had no funds to forfeit. Defendant argued that he was being punished for lacking sufficient wealth to confiscate. The 7th Circuit rejected the argument, ruling that a sentence within the guidelines cannot be reviewed as being “draconian or too lenient.” Moreover, even if the co-defendant received less than he deserved, defendant “gains no similar advantage by reason of [co-defendant’s] good fortune.” U.S. v. Cea, 914 F.2d 881 (7th Cir. 1990).
7th Circuit finds disparate sentences are not an abuse of discretion. (716) Defendant complained that his codefendant received a proportionately lesser prison term than he did. The court found that disparity alone does not constitute an abuse of discretion. Defendant actually received a lower sentence than the codefendant, and the 7th Circuit found that his “disproportionality argument appears to be, at bottom, an expression of his disappointment at the extent of the departure he did receive.” Since the 7th Circuit had no jurisdiction to review the extent of a downward departure, the district court’s sentence was affirmed. U.S. v. Heilprin, 910 F.2d 471 (7th Cir. 1990).
7th Circuit rejects appeal based on disparity in sentences. (716) Defendant pled guilty to three counts of conspiracy to use counterfeit credit cards to defraud, and received a twelve month sentence. She appealed, arguing her conduct was no more culpable than that of a co-conspirator, who received a one month term. The 7th Circuit rejected her argument, holding that 18 U.S.C. § 3742(a), under which the appeal was taken, does not allow “disparity” review of a guideline sentence. The court noted that under pre-guidelines sentencing procedures, disparity in sentences was grounds for reversal only if the judge did not give “thoughtful consideration” to the matter. Even given that standard, the District Court’s actions here were correct. U.S. v. Smith, 897 F.2d 909 (7th Cir. 1990).
7th Circuit rules that disparity of sentence between co-defendants is not a basis for appeal. (716) Defendant argued that his sentence was excessive because it was more severe than that of his co-defendants. The 7th Circuit rejected the argument, ruling that 18 U.S.C. sections 3742(e) and (f) “clearly mandate” that defendant’s sentence be affirmed “despite its disparity with his co-defendant’s sentences.” U.S. v. Guerrero, 894 F.2d 261 (7th Cir. 1990).
8th Circuit holds that “drastic difference” between sentences did not make defendant’s sentence unreasonable. (716) Defendant pled guilty to drug charges, and was sentenced to 48 months. His co-defendant, Fisher, pled guilty to the same offense as defendant, but was sentenced to 12 months and one day of imprisonment. Defendant argued that the “drastic difference” between the sentences established that the court abused its discretion when sentencing defendant to 48 months. The Eighth Circuit held that the sentencing disparity did not render defendant’s sentence either procedurally or substantively unreasonable. The district court was aware of the need to avoid unwarranted sentence disparities and expressly mentioned that statutory factor. Moreover, Fisher was sentenced more than one month after defendant. Even if an appellate court were to conclude that there were no legitimate distinctions between the two defendants, there was no principled basis for determining whether the appropriate sentence for a similarly-situated defendant was Fisher’s sentence of 12 months’ imprisonment, or defendant’s sentence of 48 months. U.S. v. McDowell, 676 F.3d 730 (8th Cir. 2012).
8th Circuit upward variance for defendant despite lower sentence for co-defendant. (716) Defendant and his girlfriend each pled guilty to second-degree murder committed on an Indian reservation. Each had a guideline range of 168-210 months, but defendant’s girlfriend provided substantial assistance and received a downward departure. She was sentenced to 121 months. The district court varied upward in sentencing defendant to 222 months. The Eighth Circuit held that defendant’s sentence was substantively reasonable, ruling that the district court did not abuse its discretion in varying upward in defendant’s case but not in his girlfriend’s case. The court looked into their respective backgrounds, including defendant’s history of violence toward women, including his girlfriend. The court found that her actions were in part motivated by fear of defendant in his drunken state on the evening of the killing. She also expressed regret for the crime, while defendant remained defiant. Moreover, the PSR indicated significant distinctions in their conduct on the night of the killing. U.S. v. Maxwell, 664 F.3d 240 (8th Cir. 2011).
8th Circuit holds that court did not err in refusing to grant downward variance based on accomplice’s lower sentence. (716) Defendant was convicted of drug trafficking and sentenced to 140 months. He argued on appeal that the court failed to adequately consider his arguments for a below-guideline sentence given the downward variance to the mandatory minimum to 60 months granted to his accomplice Parks. The Eighth Circuit held that the court did not procedurally err in refusing to grant a variance. The court found defendant was “different from the other defendants.” The court noted defendant’s high risk of recidivism, long history of criminality (defendant was in category VI and his accomplice was in Category I), and the fact that unlike the other defendants, defendant not only went to trial, but he lied at trial, for which he received an obstruction of justice adjustment. U.S. v. Williams, 624 F.3d 889 (8th Cir. 2010).
8th Circuit says court explained rationale for disparity between co-defendants’ sentences. (716) Defendant and Liskow were convicted of aiding and abetting each other in robbing a bank. The Eighth Circuit rejected defendant’s claim that the district court failed to explain its rationale for the disparity between defendant’s 220-month sentence and Liskow’s 46-month sentence. The court stated that not only had Liskow accepted responsibility and pled guilty, but that defendant was more culpable than Liskow in the robbery. Based on these legitimate distinctions, and the fact that defendant had a much more extensive criminal history than Liskow, the disparity in sentences was not unwarranted or unreasonable. U.S. v. Dixon, 650 F.3d 1080 (8th Cir. 2011).
8th Circuit permits considering sentences imposed on others in related scheme. (716) Defendant pled guilty to willfully filing a false joint tax return with his wife for calendar year 2007. The return listed defendant as the proprietor of a business that reported cost of goods that exceeded sales, resulting in a net loss that reduced defendant’s income tax liability for the year. The company’s income was derived from a fraud scheme by defendant’s wife and a government employee, Brown. His wife and Brown pled guilty to theft of public money and each was sentenced to 24 months. Defendant argued that at sentencing, the district court improperly considered the 24-month sentences imposed on his wife and Brown for the theft-of-public-money-conviction, an offense for which defendant was neither charged nor shown to be personally involved. The Eighth Circuit found no error. At sentencing, the district court noted that defendant did not dispute the PSR’s conclusion that he was equally culpable with his wife, and that he disproportionately benefited financially from the scheme. On these facts, it was not improper to consider the sentences imposed on his wife and Brown for their clearly related offenses in order to avoid potential sentence disparity. U.S. v. Shrum, 655 F.3d 782 (8th Cir. 2011).
8th Circuit rejects variance where defendant was not similarly situated to other defendants. (716) Defendant argued that his sentence was unreasonable because of unwarranted sentencing disparities between defendant and three defendants in unrelated cases. The Eighth Circuit rejected the argument because defendant was not similarly situated to any of the defendants in the cases he cited. Unlike defendant, the defendant in one case provided substantial assistance to the government and received a § 5K1.1 reduction. Defendant was not similarly situated to the other two defendants because they were not convicted of conduct similar to that of defendant. Defendant’s argument based on the sentences of his two co-conspirators failed for the same reason – he was not similarly situated to his two co-conspirators. Defendant was the organizer of the conspiracy, since he orchestrated two separate drug sales in which he directed his co-conspirators to complete the transactions. In addition, the co-conspirators each received three-level reductions for acceptance of responsibility upon the government’s motion, § 3B1.1(b), while defendant only received a two-level reduction. U.S. v. Frausto, 636 F.3d 992 (8th Cir. 2011).
8th Circuit affirms sentence within advisory guideline range despite disparity claim. (716) Defendant argued that the district court should have granted him a downward variance because two co-conspirators were equally culpable in committing the offenses, but defendant was subject to a statutorily-mandated 25-year consecutive sentence for a second gun count, and they were not. The Eighth Circuit found no error. It is not an abuse of discretion for a court to impose a sentence that results in a disparity between co-defendants when there are “legitimate distinctions” between the co-defendants. Moreover, defendant’s sentence was within his advisory Guidelines range, and courts apply a presumption of reasonableness to within-Guidelines range sentences. Even if no presumption were applied, defendant’s sentence was based on concerns for protecting the public from defendant, who historically began committing violent crimes shortly after release from prison. U.S. v. Wesley, 648 F.3d 640 (8th Cir. 2011).
8th Circuit rejects sentencing disparity claim where co-conspirators were not similarly situated. (716) Defendant and two co-conspirators, Duran and Mendoza-Ramirez, faced similar drug charges, were responsible for about the same amounts of methamphetamine, and they all pleaded guilty. However, defendant received a 292-month sentence, while Duran received a 96-month sentence, and Mendoza-Ramirez received a 108-month sentence. Defendant argued that the district court committed procedural error by failing to adequately consider the disparity between his sentence and the sentences of his co-conspirators. The Eighth Circuit found that the three conspirators were not similarly situated, and thus there was no error. Defendant obstructed justice (the other two did not), he was ineligible for safety valve relief (the other two received such relief), and he did not accept responsibility for his criminal activity (the other two did). Moreover, the district court’s comments showed that it knew that it had the authority to vary downward from the advisory sentencing guidelines, and rejected defendant’s request to do so. The sentence was not substantively unreasonable. U.S. v. Sandoval-Sianuqui, 632 F.3d 438 (8th Cir. 2011).
8th Circuit holds that defendant failed to show special need for access to accomplice’s PSR. (716) Defendant argued that the district court abused its discretion by denying his motion for access to the PSR and sentencing transcript of Parks, his accomplice. He claimed he needed those materials to show disparity under § 3553(a)(6). The Eighth Circuit upheld the district court’s finding that the disclosure was unnecessary. Although defendant contended that he needed Park’s PSR to determine whether he and Parks had a similar record and were guilty of similar conduct, much of the information defendant sought was contained in publicly available documents. The government’s sentencing memo, Park’s sentencing memo, the court minute entry, and Park’s judgment discussed much of Park’s offense, conduct criminal history and Guidelines calculation. The fact that a defendant is one member of the criminal conspiracy does not automatically create a “special need” to release a PSR in order to allow disparity arguments under 18 U.S.C. § 3553(a) (6). U.S. v. Williams, 624 F.3d 889 (8th Cir. 2010).
8th Circuit okays disparity between defendant’s 60-month sentence and accomplice’s probationary term. (716) Defendant and an accomplice used a victim’s personal information obtain $14,000 in credit at a store, and then used that credit to purchase $12,000 in gift cards. Although defendant’s guideline range was 24-30 months, the district court sentenced him to 60 months, while his accomplice received a sentence of probation. The Eighth Circuit held that the disparity between the two sentences was not unwarranted because defendant and his accomplice were not similarly situated. Defendant had 21 criminal history points, well over the number needed to place him in the highest criminal history category. The accomplice had no criminal history points. A criminal history difference of 21 points is a “legitimate distinction.” U.S. v. Davis-Bey, 605 F.3d 479 (8th Cir. 2010).
8th Circuit does not require court to compare defendant to offender in separate case. (716) Defendant pled guilty to being a felon in possession of a firearm. He argued for a lenient sentence in light of the sentence of probation granted to a defendant in a similar case. Defendant argued that he, like the defendant in U.S. v. Francis, 462 F.3d. 810 (8th Cir. 2006), had reason to believe that the prohibition on his possession of firearms had ended. The Eighth Circuit upheld the sentence imposed, finding that the district court adequately considered defendant’s argument regarding his intent. First, there was no basis for defendant to believe that he could lawfully possess a firearm. Second, the appellate court refused to require a district judge, at the request of one party, to compare and contrast the defendant with a similar offender who has been sentenced by another federal judge in another judicial district, and to articulate on the record why the two offenders are sentenced differently. It would give too much weight to the decision of one district judge if a sentencing court was required to use a single example cited by one party as the reference point for an appropriate sentence. U.S. v. Barron, 557 F.3d 866 (8th Cir. 2009).
8th Circuit denies motion for access to records of previously sentenced co-defendants. (716) Defendant argued that the district court erred in denying his motion for access to the PSRs and sentencing transcripts of previously sentenced co-defendants, which he contended he needed in order to compare sentences under 18 U.S.C. §3553(a)(6). The district court had found that defendant had not made a showing that disclosure of the PSRs was “required to meet the ends of justice,” and that publicly available documents would give defendant access to the information he needed. The Eighth Circuit found no abuse of discretion. The justness of the district court’s reasoning was demonstrated by the materials in the clerk’s record and in defendant’s motion to supplement the record, which contained copies of the plea agreements, factual basis statements, and judgments for the many co-conspirators who pleaded guilty. These publicly available records showed offense characteristics and the sentences imposed for the co-conspirators to whom defendant wished to compare his sentence. Defendant did not show that the publicly available sources of information were inadequate for his purposes. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).
8th Circuit rejects variance for alien’s ineligibility for early release because firearm made him ineligible. (716) Defendant was convicted of drug trafficking and firearm charges. The district court based a downward variance on the fact that prisoners who are U.S. citizens are eligible for early release programs, but illegal alien prisoners are not. The Eighth Circuit held that the court committed a procedural error in relying on this factor. Defendant’s conviction for possessing a firearm under § 924(c) made him ineligible, regardless of whether he was a U.S. citizen or an illegal alien. The district court committed a procedural error by relying on an erroneous factor. U.S. v. Garcia-Hernandez, 530 F.3d 657 (8th Cir. 2008).
8th Circuit reverses where court failed to adequately explain 59% downward variance. (716) On defendant’s first appeal (Pepper I), the Eighth Circuit reversed a 75% substantial assistance departure under § 5K1.1, because it was based on matters unrelated to defendant’s assistance. On remand, the district court granted a 40% downward substantial assistance departure, followed by a 59% downward variance, and imposed the same 24-month sentence. The Eighth Circuit reversed and remanded for resentencing by a different judge (Pepper II), but the Supreme Court remanded for reconsideration in light of Gall v. U.S., 128 S. Ct. 586 (2007). The Eighth Circuit again reversed and remanded for resentencing by a different judge. Although the court did not abuse its discretion in granting the § 5K1.1 departure, the court failed to adequately explain why the additional 59% downward variance was warranted. Defendant’s lack of a violent history was already counted in his criminal history score. Despite the district court’s desire to avoid unwarranted sentencing disparity among co-conspirators, it appeared that defendant’s 24-month sentence actually created a sentencing disparity. Finally, the court improperly considered defendant’s post-sentence rehabilitation. Gall did not alter circuit precedent or its conclusion in Pepper II that post-sentence rehabilitation is an impermissible factor to consider in granting a downward variance. U.S. v. Pepper, 518 F.3d 949 (8th Cir. 2008).
8th Circuit affirms guideline sentence even though co-defendants received lower sentences. (716) Defendant argued that his sentence, while at the bottom of the applicable guideline range, was excessive because it was above the statutory minimum sentence; his co-defendants received much shorter sentences; he had a relatively insignificant criminal history; he had three children; he maintained a meager lifestyle; and he was subject to deportation following his sentence. The Eighth Circuit found that the district court adequately considered the § 3553(a) factors and that defendant’s sentence was reasonable. A district court does not abuse its discretion by imposing a sentence within the applicable guideline range merely because the statutory minimum sentence is lower than the guideline range. Further, the fact that defendant’s co-defendant received sentences lower than his did not indicate that his sentence was disproportionate or unreasonable. Defendant’s co-defendants received downward departures by providing substantial assistance to the government, an option defendant declined. As to defendant’s personal history, the district court was aware of, and therefore considered, those factors. U.S. v. Garcia, 512 F.3d 1004 (8th Cir. 2008).
8th Circuit says defendant and co-defendant were not similarly situated. (716) Defendant enlisted several associates to help him steal drugs from a rival drug dealer. During an ambush, one of defendant’s associates shot and killed one of defendant’s rivals. Defendant’s sentence included a term of imprisonment of 305 months, while co-defendant Sallis received a sentence of 136 months. Defendant argued that the district court should have granted him a variance, in accordance with the § 3553(a) factors, to avoid significant sentencing disparities between equally situated offenders. The Eighth Circuit found that defendant and his co-defendant were not similarly situated, and thus the case was distinguishable from U.S. v. Lazenby, 439 F.3d 928 (8th Cir. 2006). Sallis received a downward departure for felony murder, along with reductions for acceptance of responsibility and substantial government assistance. U.S.S.G. § 2A1.1, Note 2(B), § 5K1.1. In contrast, defendant received several enhancements because his participation in the conspiracy involved a handgun and was committed within 1,000 feet of a protected area. The court also found that defendant was the conspiracy’s leader. Further, the court found that defendant was the more culpable of the two defendants. Defendant planned the ambush and recruited Sallis. Defendant conceived the ambush for his financial gain, and was aware that the shooter was armed. U.S. v. Watson, 480 F.3d 1175 (8th Cir. 2007).
8th Circuit finds court did not abuse discretion in imposing higher sentence than one given to co-defendant. (716) Defendant pled guilty to methamphetamine conspiracy charges. He received a 168-month sentence, which was at the bottom of the advisory sentencing range. He argued that the sentence was unreasonable because his co-conspirator, who was equally culpable, had received a sentence of 70 months’ imprisonment. Under 18 U.S.C. § 3553(a)(6), a sentencing court must consider the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. The Eighth Circuit found any sentencing disparity was not “unwarranted.” The co-conspirator cooperated, and received a § 5K1.1 downward departure. Disparity in sentences between a defendant who provided substantial assistance and one who provided no assistance is not “unwarranted.” In addition, the co-conspirator was in a lower criminal history category, which resulted in a lower advisory guideline range than defendant despite being charged with the same offense. U.S. v. Gallegos, 480 F.3d 856 (8th Cir. 2007).
8th Circuit bars court from considering disparity between defendant’s federal sentence and accomplice’s state sentence. (716) Defendant pled guilty to methamphetamine charges. His advisory guideline range was 84-105 months, but the district court varied downward to impose a sentence of 48 months because defendant’s accomplice received a sentence of between one to two years in state court. The Eight Circuit held that the district court abused its discretion by considering the disparity between defendant’s federal sentence and his accomplice’s state court sentence. In U.S. v. Jeremiah, 446 F.3d 805 (8th Cir. 2006), the court held that the Sentencing Commissions’ goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded if potential federal/state sentencing discrepancies were considered. A district court is neither required nor permitted under 3553(a)(6) to consider a potential federal/state sentencing disparity in imposing a sentence. U.S. v. McCormick, 474 F.3d 1012 (8th Cir. 2006).
8th Circuit says court could reduce sentence of later-convicted defendant to reduce sentence disparity. (716) Defendant, a low-level participant in a drug conspiracy, committed perjury before a grand jury. Although defendant’s advisory guideline range was 70-87 months, the district court sentenced her to 24 months. In addition to discussing a number of § 3553(a) factors, the district court also expressed a desire not to impose disparate sentences. Another member of the same conspiracy who was very similarly situated to defendant was sentenced to only 15 months. Both defendants had a criminal history of I, both committed the same crime in the same conspiracy, and neither cooperated. The only real difference other than timing was that defendant pled guilty while the co-defendant went to trial (which would normally indicate that defendant should receive a lower sentence). However, because of the timing of her conviction, defendant ended up with a much higher offense level. By the time she was sentenced, the government had developed more information about the scope of the conspiracy and was able to attribute more methamphetamine to the conspiracy. The Eighth Circuit held that the district court did not abuse its discretion in fashioning a sentence that attempted to address the disparity in sentences between two nearly identically situated individuals who committed the same crime in the same conspiracy. The only distinction was the timing of the indictments. There may be many cases where a defendant received a higher guideline range when he or she pleads or is tried later in the conspiracy, after the government has more fully developed its case. However, under the facts of this case, the district court did not improperly apply § 3553(a)(6) or abuse its discretion. U.S. v. Krutsinger, 449 F.3d 827 (8th Cir. 2006).
8th Circuit says alleged sentence disparity not grounds for departure. (716) Defendant argued that his sentence was “greatly disproportionate” to those of equally culpable co-defendants and that the district court should have reduced his sentence accordingly. However, even if defendant could demonstrate that similarly situated or more culpable offenders received lesser sentences, the Eighth Circuit noted that it would reject his claim because “disparity between sentences imposed on co-defendants is not a proper basis for departure.” U.S. v. Banks, 340 F.3d 683 (8th Cir. 2003).
8th Circuit rejects claim that sentence was disproportionate to those of other defendants. (716) Defendant argued that his sentence was disproportionate to those of the other defendants charged as a result of the same drug task force investigation and, therefore, his sentence violated the Eighth and Fourteenth Amendments. However, defendant only raised general arguments regarding the other allegedly similarly situated defendants, without discussing the perceived differences among the various cases. Defendant ignored the cooperation provided by two defendants that assisted authorities in defendant’s case and the likelihood that those defendants received downward departures for substantial assistance. Defendant also failed to note that he was a career offender, while the other defendants did not fall under § 4B1.1. The Eighth Circuit therefore rejected defendant’s argument. He did not show an abuse of discretion, that his sentence was grossly disproportionate to his crime, or a due process violation. U.S. v. Gregor, 339 F.3d 666 (8th Cir. 2003).
8th Circuit says failure to depart based on sentencing disparity and family circumstances not plain error. (716) Defendant argued for the first time on appeal that the district court should have granted him a downward departure. The Eighth Circuit found that defendant’s failure to request a downward departure at sentencing was fatal to his appeal. By failing to request a downward departure, defendant effectively waived this argument, and subjected his appeal, at best, to plain error review. Defendant was not entitled to a downward departure based on a disparity between his sentence and his co-defendants’ sentences. Defendant received the same 33-month sentence as his co-defendants. Moreover, disparity between sentence imposed on co-defendants is not a proper basis for departure. Defendant was not entitled to a downward departure based on his family circumstances. Although his wife was disabled and he was the sole support for his three children, his family circumstances were not so extraordinary as to take him out of the heartland. U.S. v. Carrasco, 271 F.3d 765 (8th Cir. 2001).
8th Circuit says disparity in co-conspirators’ sentences not ground for downward departure. (716) Three defendants were convicted of drug conspiracy charges. The district court, concerned about the disparities between the sentence given the cooperating co-conspirators and those it believed it was required to impose on defendant, expressed a desire to depart but concluded that it was bound by law to stay within the guidelines. The Eighth Circuit agreed that the disparity in the sentences given the testifying co-conspirators was not grounds for a downward departure. Disparity between sentences is not a permissible basis for departures. U.S. v. Jones, 160 F.3d 473 (8th Cir. 1998).
8th Circuit holds refusal to depart downward was not reviewable. (716) Defendant was convicted of drug and money laundering charges. He argued that the district court abused its discretion in denying his motion for a downward departure based on his advanced age and poor health and the relative disparity between his guidelines range sentence and the sentences imposed on his co-conspirators. The Eighth Circuit held that the court’s refusal to depart downward was unreviewable on appeal. The district court acknowledged its authority to depart but concluded that the facts did not justify a downward departure. Moreover, disparity in sentences among conspirators is not a proper basis for departure. U.S. v. Eastman, 149 F.3d 802 (8th Cir. 1998).
8th Circuit rejects departure based on disparity between co-defendants. (716) Defendant argued that the district court erred in failing to depart sufficiently to cure the disparity between the sentences he and other more culpable co-defendants received. The Eighth Circuit held that this argument was foreclosed by previous cases holding that disparity between sentences imposed on co-defendants is not a proper basis for departure. A defendant cannot rely upon his co-defendant’s sentence as a yardstick for his own. A sentence is not disproportionate just because it exceeds a co-defendant’s sentence. U.S. v. Jones, 145 F.3d 959 (8th Cir. 1998).
8th Circuit upholds sentence despite lighter sentences received by ringleaders of drug conspiracy. (716) Defendant argued that the district court erred in holding that it could not depart based on the disparate sentence received by others more culpable than he. Defendant had a guideline range of 360 months to life, while the ringleaders each received sentences of 276 months. The Eighth Circuit found that its review was limited to determining whether defendant’s sentence was imposed as a result of an incorrect application of the guideline. The district court correctly applied the guidelines in defendant’s case. U.S. v. Jones, 145 F.3d 959 (8th Cir. 1998).
8th Circuit rejects departure for disparity, cost of imprisonment, harsh crack penalties, and lack of gun. (716) Defendants pled guilty to a crack cocaine conspiracy. The Eighth Circuit rejected a downward departure based on lower sentences that other conspirators in the scheme had received from other judges, the costs of imprisoning the defendants, the harsher penalties for crack cocaine offenses, and the fact that there were no weapons or violence involved in the offense. Previous cases have held that disparity between sentences imposed on co-defendants and the harsher penalties for crack cocaine are not a proper bases for departure. The decision whether tax dollars should be used for lengthy sentences is for Congress, not the federal courts. Defendants’ sentences already accounted for their lack of weapons–none received a § 2D1.1(b)(1) enhancement and two received a reduction under § 5C1.2. U.S. v. Wong, 127 F.3d 725 (8th Cir. 1997).
8th Circuit refuses to review extent of downward departures. (716) Defendant claimed that his 57-month sentence created an unwarranted disparity between his punishment and that of his co-conspirator. The Eighth Circuit found this claim lacked merit, since the extent of a downward departure is not reviewable on appeal. Both defendant and his co-conspirator cooperated with law enforcement agencies and received downward departures at sentencing. In essence, defendant was challenging the relative extent of the departures, which is not reviewable. U.S. v. Goodwin, 72 F.3d 88 (8th Cir. 1995).
8th Circuit finds difference in sentence properly based on criminal history and one defendant’s withdrawal from conspiracy. (716) Defendant argued that there was an unwarranted disparity between his 262-month sentence and the 60-month sentence of his co-conspirator who pled guilty to the same counts. The Eighth Circuit found no constitutional violation, since the difference in sentences was based on different criminal histories (defendant’s was V while his co-conspirator’s was II), the co-conspirator’s acceptance of responsibility reduction, and the co-conspirator’s withdrawal from the conspiracy before numerous drug transactions for which defendant was accountable. U.S. v. Skorniak, 59 F.3d 750 (8th Cir. 1995).
8th Circuit rejects departure for disparity but suggests applying new “safety valve.” (716) Defendant helped his brother deal narcotics. His guideline range was 51-63 months, but was subject to a mandatory minimum 60-month sentence. The district court departed to a 36-month sentence, finding it “bizarre” that defendant would be subject to the same 60-month sentence as his more culpable brother. The Eighth Circuit reversed, since disparity between co-defendants is not a proper basis for departure, and the fact that defendant had no criminal record could not justify a departure. However, the government conceded at oral argument that under the new “safety valve,” § 5C1.2, defendant could be sentenced without regard to the mandatory minimum, if he provided full information to the government prior to resentencing. This would broaden defendant’s sentencing range to the guideline range of 51-63 months. U.S. v. Polanco, 53 F.3d 893 (8th Cir. 1995).
8th Circuit holds that disparate sentences between leader and minor participants did not violate due process. (716) Defendant received a 235-month sentence for various drug convictions. Two co-conspirators who cooperated with authorities received a 24-month and an 18-month sentence, respectively. The Eighth Circuit held that the disparate sentences did not violate due process. The guidelines were correctly applied to defendant. The district court found that defendant was the leader of the conspiracy, while his co-conspirators were relatively minor players. Moreover, the co-conspirators properly received downward departures under § 5K1.1 because they pled guilty and cooperated with authorities. The district court did not retaliate against defendant for exercising his right to trial. The 235-month sentence did not constitute cruel and unusual punishment. U.S. v. Thompson, 51 F.3d 122 (8th Cir. 1995).
8th Circuit holds that different sentences were justified by different convictions. (716) Because his brother received a 121-month sentence for “identical conduct,” defendant argued that his 160-month sentence was inconsistent with the guidelines’ objective of imposing similar sentences on similarly situated offenders. The 8th Circuit rejected this claim because the brothers’ conduct was not identical. Defendant was also convicted of failing to appear at the first trial, and 18 U.S.C. section 3146(b)(2) requires a consecutive sentence for that conviction. U.S. v. Mihm, 13 F.3d 1200 (8th Cir. 1994).
8th Circuit refuses to review claim based on same sentence for dissimilarly situated defendant. (716) Defendant claimed the district court erred in imposing on him a sentence similar to the sentence it imposed on a dissimilarly situated defendant. The 8th Circuit held that to the extent defendant claimed the district court erred in refusing to depart in light of the other defendant’s sentence, his claim was not reviewable on appeal. There was no violation of law. The fact that defendant’s sentence was similar to another defendant’s did not violate the constitution or any law. U.S. v. Hall, 7 F.3d 1394 (8th Cir. 1993).
8th Circuit upholds refusal to depart despite government’s soliciting repeated sales and fact that co-conspirators were prosecuted by state. (716) Defendant argued that a downward departure was warranted because he was solicited by the government to make repeated sales, which substantially increased his sentence. He also contended a departure was warranted because he was the only one of 30 persons prosecuted in federal court. The others were prosecuted in state court. The 8th Circuit affirmed the denial of the motion to depart, noting that a district court’s decision not to depart is not reviewable. U.S. v. Taylor, 986 F.2d 297 (8th Cir. 1993).
8th Circuit rejects claim of disproportionate downward departures. (716) Defendants argued that their sentences were disproportionate to those given to their co-defendants, contending that the court improperly failed to depart to the same degree that it did in other cases. The 8th Circuit held that this issue was not reviewable, since it raised an issue concerning the extent of a substantial assistance departure. Moreover, a sentence is not disproportionate just because it exceeds a co-defendant’s sentence. Defendants failed to take into account the many different factors that the district court relied upon to reach appropriate sentences for all of the co- defendants who pled guilty and provided assistance to the government. U.S. v. Womack, 985 F.2d 395 (8th Cir. 1993).
8th Circuit affirms consideration of co-defendant’s probable sentence in choosing sentence within guideline range. (716) The 8th Circuit held that in choosing a sentence within a defendant’s guideline range under 18 U.S.C. section 3553(c)(1), a district court may consider a co-defendant’s probable sentence. Section 3553(a)(6) states that among factors to be considered during sentencing, the court should consider the need to avoid unwarranted sentence disparities among defendants who have been found guilty of similar conduct. Here, the district court compared the involvement of defendant and his co-defendant in the same drug transaction. Moreover, the court considered defendant’s background, involvement in the offense, and age. The court adequately stated its reasons for defendant’s sentence. U.S. v. Stanton, 973 F.2d 608 (8th Cir. 1992).
8th Circuit rejects due process challenge based upon co-conspirators’ disparate sentences. (716) The 8th Circuit rejected defendant’s claim that the disparity between him sentence and those of his co-conspirators constituted a due process violation. Defendant failed to establish that he was similarly situated with his co-conspirators. Defendant was the “ring leader” of the conspiracy. Additionally, his co-conspirators entered into plea agreements. Thus, the disparity was easily explained. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).
8th Circuit rejects disparate sentence of co-conspirator as grounds for resentencing. (716) The 8th Circuit found no error in the district court’s imposition of two sentences that were much higher than the one imposed upon a co-conspirator. A sentence is not disproportionate just because its exceeds a co-defendant’s sentence. Disparity will always exist so long as sentences are based upon the specific facts of each individual defendant’s case. A court is not obliged to consider the sentence of a co-defendant when imposing a sentence on a defendant. Here, the defendants who challenged their sentences were either organizers or significant participants in the drug conspiracy, and had substantial criminal histories. In contrast, the co-defendant was a “mule” or “runner” who withdrew from the conspiracy prior to its end. Thus, the disparity properly reflected the defendant’s individual criminal histories and degrees of involvement in the conspiracy. U.S. v. Granados, 962 F.2d 767 (8th Cir. 1992).
8th Circuit rejects due process challenge based on disparity in extent of substantial assistance departures. (716) Defendants argued that the downward departures they received for assistance to the government were insufficient because of the greater departures granted to their co-conspirators. The 8th Circuit held that it lacked jurisdiction to review the extent of a downward departure. However, the court found that it did have jurisdiction under 18 U.S.C. section 3742(a)(1) to review defendant’s tangential claim that the disparate sentences violated due process. The court found the argument meritless. Defendants were heavily involved in the conspiracy, and although each provided assistance in convicting one of their co-conspirators, no additional evidence of any value was provided. It was possible that one of the defendant’s assistance would have been of much greater value if he decided to cooperate at an earlier date. Defendants benefited from greatly reduced sentences. Mere disparity does not demonstrate an abuse of discretion. U.S. v. Albers, 961 F.2d 710 (8th Cir. 1992).
8th Circuit rejects downward departure based upon disparity of sentence where co-defendant was not similarly situated. (716) Defendant contended that his 30-year sentence was not proportionate to the smaller sentence received by the “ring leader” of the conspiracy. The 8th Circuit refused to order resentencing because the two defendants were not similarly situated. The “ring leader” entered into a plea agreement with the government at a time when the government was able to attribute a smaller quantity of drugs to the conspiracy than when defendant was sentenced. In addition, the “ring leader” received a downward departure for cooperating the authorities. U.S. v. Jackson, 959 F.2d 81 (8th Cir. 1992).
8th Circuit rejects due process claim based upon disparity of sentences among co-conspirators. (716) The 8th Circuit rejected defendant’s claim that the disparity between his sentence and the sentences received by his co-conspirators who were more culpable than he was violated his due process and equal protection rights. At defendant’s sentencing hearing, the prosecutor explained that conspirators who were prosecuted earlier in the investigation had received shorter sentences because the government was then unaware of the conspiracy’s magnitude. U.S. v. Askew, 958 F.2d 806 (8th Cir. 1992).
8th Circuit judge expresses concern with prosecutor’s plea bargaining and charging practices. (716) The 8th Circuit summarily rejected defendant’s argument that the district court misapplied the relevant conduct provisions of the guidelines. Senior Judge Heaney wrote a lengthy concurrence in which he expressed his concern about the sentence disparities among defendants with similar degrees of involvement in the drug ring. The sentence disparity resulted “not from decisions made by the district judge, but from charging decisions and plea bargains made by the prosecutor.” According to Judge Heaney, the defendants who go to trial pay a “heavy premium” for their choice, and the prosecutor largely determines the sentence of the defendants by deciding who to charge, what to charge, and when to charge. U.S. v. Hammer, 940 F.2d 1141 (8th Cir. 1991).
8th Circuit rejects claim that disparate sentence requires resentencing. (716) Defendant argued that his sentence should be vacated and remanded in light of the fact that his accomplice received a shorter sentence, even though he was charged with the same offenses as defendant. Citing previous Circuit precedent, the 8th Circuit rejected this argument without discussion. U.S. v. Cox, 921 F.2d 772 (8th Cir. 1990).
8th Circuit rejects sentence disparity as grounds for downward departure. (716) Defendant contended that the district court erred in refusing his request for a downward departure on the ground his co-defendant received a lesser sentence than his own. The 8th Circuit ruled that a district court may not depart from the guidelines based solely on a co-defendant’s sentence. U.S. v. Torres, 921 F.2d 196 (8th Cir. 1990).
8th Circuit upholds $40,000 fine despite disparity with codefendant. (716) Defendant contended that his $40,000 fine was unjust because his co-conspirator received only a $4,000 fine. The 8th Circuit upheld the fine, noting that the district court properly based its decision on defendant’s ability to pay the fine. U.S. v. Dall, 918 F.2d 52 (8th Cir. 1990).
8th Circuit holds defendant not entitled to same downward departure as his co-defendants. (716) Defendant argued that his sentence created an unwarranted disparity between his sentence and the sentences imposed upon his co-defendants. The 8th Circuit rejected this argument, noting that the primary reason for the difference in sentence was that the co-defendants received a downward departure for substantial assistance to the government. The district court’s refusal to grant a downward departure was not reviewable. U.S. v. Keene, 915 F.2d 1164 (8th Cir. 1990).
8th Circuit holds that disparity in sentences among co-conspirators is not a sufficient basis for resentencing. (716) Defendant complained that it violated due process for him to receive a longer sentence than a codefendant who was higher in the conspiracy hierarchy. The 8th Circuit found that a mere variation in sentences among co-conspirators does not violate due process or require resentencing. The disparity was explained by defendant’s more extensive criminal history, and the upward adjustment for defendant’s obstruction of justice. U.S. v. Meggers, 912 F.2d 246 (8th Cir. 1990).
8th Circuit upholds forty-year sentence even though codefendant was sentenced to ten years. (716) Defendant argued that the court acted inequitably and unconstitutionally in sentencing him to forty years when his codefendant was sentenced to ten years for the same crime. The 8th Circuit rejected the argument, noting that this was a pre-guidelines sentence because the offense occurred before Nov. 1, 1987. The court stated that “a sentence within statutory limits is generally not subject to review,” and a reviewing court is limited to determining whether the district court has “manifestly or grossly abused its discretion.” Noting that the codefendant’s involvement in the offense was of a lesser degree, the court found no abuse of discretion. U.S. v. Wayne, 903 F.2d 1188 (8th Cir. 1990).
8th Circuit upholds prosecutorial discretion in charging firearms violations. (716) Defendants argued the sentencing guidelines are invalid because the prosecutor has discretion to charge either use of a firearm as a separate substantive offense under § 924(e) or to assert the firearm use merely as a specific offense characteristic to enhance a drug trafficking offense. Defendants argued that such discretion could lead to a disparity in sentencing defendants convicted of the same unlawful act. The 8th Circuit disagreed. “The fact that the prosecutor is empowered to choose between charging a violation of § 924(c) and merely seeking an enhancement of sentence based on his evaluation of the strength of the case against the defendant does not in any way violate the statutory goal of ‘avoiding unwarranted sentence disparities.’” U.S. v. Foote, 898 F.2d 659 (8th Cir. 1990).
9th Circuit holds that 46-month sentence for stalking was not disparate. (716) Defendant was convicted of stalking, in violation of 18 U.S.C. § 2261A, and sentenced to 46 months’ imprisonment. On appeal, he argued that his sentence was unreasonable because another defendant received a lesser sentence for more extensive and intrusive stalking. The Ninth Circuit rejected this claim, noting that the other defendant pleaded guilty and that defendant had a more extensive criminal history than the other defendant. U.S. v. Osinger, 753 F.3d 939 (9th Cir. 2014).
9th Circuit finds no error in failing to consider disparity with state sentence. (716) Defendant pleaded guilty to possession of a firearm by a convicted felon. At sentencing, the district court found that defendant had a sentencing range under the Guidelines of 92 to 115 months. Defendant argued that he should receive a sentence below the Guidelines range because he would have been subject to a maximum sentence of three years if he had been convicted of the same offense in state court. The district court imposed a 92-month sentence. The Ninth Circuit held that the district court did not commit a procedural error by not considering the disparity between the recommended Guideline sentence and the sentence that defendant would have received in state court. The court held that 18 U.S.C. § 3553(a)(6), which requires a sentencing court to consider the need to avoid unwarranted disparities among defendants with similar records, applies only to disparities among similarly situated federal defendants. U.S. v. Ringgold, 571 F.3d 948 (9th Cir. 2009).
9th Circuit holds that court did not improperly try to eliminate disparity with co-defendants. (716) Defendant pleaded guilty to trafficking in MDMA or “ecstasy.” His range under the advisory Sentencing Guidelines was 63 to 78 months, and the district court sentenced him to 63 months. At sentencing, the district court weighed the factors set forth in 18 U.S.C. § 3553(a), but also noted that it wished to avoid disparity in the sentences imposed on defendant and his co-defendants. On appeal, defendant claimed that his sentence was unreasonable because the court misapplied § 3553(a)(6), which allows a sentencing court to consider “the need to avoid sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Ninth Circuit agreed with defendant that § 3553(a)(6) is intended primarily to promote national uniformity in sentencing, rather than uniformity among co-defendants, but held that the district court properly weighed the sentencing factors and imposed a reasonable sentence. U.S. v. Saeteurn, 504 F.3d 1175 (9th Cir. 2007).
9th Circuit upholds downward departure based on disparity between defendant and codefendants. (716) Defendant pled guilty to conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. § 846. At sentencing, the district court departed downward from a sentencing range of 46-57 months to a sentence of 36 months. The court justified the departure by the “totality of the circumstances,” including defendant’s post-offense rehabilitative efforts, his disadvantaged upbringing, his “socio-economic upbringing,” and the fact that his codefendants received sentences ranging from 21 to 38 months. On the government’s appeal, the Ninth Circuit affirmed on the ground that the disparity in sentences between defendant and his codefendants, standing alone, was sufficient to justify the departure. The court noted that defendant was no more culpable than his co-defendants and had no criminal history. U.S. v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004).
9th Circuit bars departure for sentence disparity unless co-defendant was convicted of the same offense. (716) In U.S. v. Daas, 198 F.3d 1167, 1180-81 (9th Cir. 1999), the Ninth Circuit held that a downward departure to equalize sentencing disparity is proper under the appropriate circumstances. However, in the present case the district court departed down based on the sentences of two co-defendants, one of whom was convicted of an entirely different offense. Relying on U.S. v. Banuelos-Rodriguez, 215 F.3d 969, 977-78 (9th Cir. 2000) (en banc), the Ninth Circuit held that a court may not depart on the basis of sentence disparity among co-defendants unless the co-defendants were convicted of the same offense as the defendant. The court left open the possibility that, on remand, the court could depart down for sentence disparity based on the one co-defendant who was convicted of the same offense. U.S. v. Caperna, 251 F.3d 827 (9th Cir. 2001).
9th Circuit rejects departure in alien case based on disparity in plea bargains among California districts. (716) Defendant pleaded guilty in the Central District of California to illegally reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326. At sentencing he sought a downward departure on the ground that if he had been arrested in one of the other federal districts of California, he would have been offered a “fast track” plea bargain that would have resulted in a shorter prison term. The district court held that the disparity between the charging and plea bargaining decisions of the United States attorneys for the four California districts is not a proper basis for departure. On appeal, the en banc Ninth Circuit affirmed, agreeing with the Second Circuit in U.S. v. Bonnet-Grullon, 212 F.3d 692 (2d Cir. 2000), superseded on other grounds by statute, U.S. v. Leiva-Deras, 359 F.3d 183 (2nd Cir. 2004). The prosecutorial policies of the other California districts are not a “mitigating circumstance” with regard to defendant or his crime. Under § 6B1.2(a), a district court is free to reject a plea agreement but is not free to accept an agreement and then depart based on the inadequacy of that agreement. Citing separation of powers concerns, the Ninth Circuit said courts “generally have no place interfering with a prosecutor’s discretion regarding whom to prosecute, what charges to file, and whether to engage in plea negotiations.” The court said that prior Ninth Circuit decisions supported its holding in this case. Judge Pregerson dissented at length. U.S. v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000) (en banc).
9th Circuit says Koon permits downward departure for disparity between co-defendants. (716) In U.S. v. Enriquez-Munoz, 906 F.2d 1356, 1360 (9th Cir. 1989), the Ninth Circuit held that an upward departure to equalize disparate sentences was impermissible under the sentencing guidelines. Six years later, the Supreme Court in Koon v. U.S., 518 U.S. 81, 109 (1996) held that, unless the guidelines specifically prohibit downward departure on a particular ground, the sentencing court must determine whether the facts of the case warrant departure on that ground. Accordingly, in this case, the Ninth Circuit held that “[d]ownward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances.” Indeed, the panel said that “a central goal of the Sentencing Guidelines is to eliminate sentencing disparity.” Because the district court believed incorrectly that it lacked the authority to depart downward based on sentencing disparity between the defendant and the cooperating co-defendants, the case was remanded for findings as to whether a downward departure was appropriate. U.S. v. Daas, 198 F.3d 1167 (9th Cir. 1999).
9th Circuit rejects challenge to sentence based on disparity with co-defendant’s sentence. (716) Defendant argued that there was unwarranted disparity between his sentence and that of a co-defendant who had more drug transactions than defendant but had received a sentence identical to the five year mandatory sentence imposed on defendant. The Ninth Circuit rejected the argument, noting that the co-defendant had plea bargained and agreed to a minimum five-year sentence, waiving appellate and post-conviction relief rights. The sentence received by the co-defendant was not an appropriate measure of what sentence defendant should receive. U.S. v. Lopez, 163 F.3d 1142 (9th Cir. 1998).
9th Circuit reaffirms that disparity among co-defendants is no basis for attacking sentence. (716) Defendant argued that an unwarranted disparity existed between his sentence and that of his co-defendant. Relying on U.S. v. Taylor, 991 F.2d 533, 536 (9th Cir. 1993) cert. denied, 510 U.S. 858 (1993), the Ninth Circuit reaffirmed that “disparity in sentencing among co-defendants is not, by itself, a sufficient ground for attacking an otherwise proper sentence under the guidelines.” U.S. v. Townsend, 98 F.3d 510 (9th Cir. 1996).
9th Circuit reverses where disparity in co-conspirators sentences was not justified. (716) The district court increased defendants’ sentences by six levels for more than 100 false immigration documents. However, at a later sentencing, the ringleader of the illegal immigration document business successfully challenged the six level increase, and the government did not appeal. The Ninth Circuit rejected the government’s argument that the sentencing disparity between the ringleader’s lower sentence and these defendants’ higher sentence was not a basis for reversal. “While it is true that disparity may exist in sentencing co-conspirators, that disparity cannot be justified where the factual findings are inconsistent on the same record.” The sentences were reversed. U.S. v. Torres, 81 F.3d 900 (9th Cir. 1996).
9th Circuit finds coconspirator had different understanding of drug quantity to be purchased. (716) Defendant and his co-conspirator negotiated to buy cocaine from an undercover agent. The district court found that the defendant agreed to buy five kilos, but his codefendant understood the agreement to involve only two. On appeal, defendant argued that in a conspiracy involving only two conspirators, the two cannot have an agreement to buy different quantities of drugs. The Ninth Circuit rejected the argument, noting that under the Guidelines’ “relevant conduct” section, 1B1.3, the court must determine the scope of each co-conspirator’s agreement. On the facts of this case, the court could properly find that defendant’s coconspirator “understood the conspiracy to involve a lesser quantity of cocaine.” U.S. v. Naranjo, 52 F.3d 245 (9th Cir. 1995).
9th Circuit clarifies rejection of defendant’s “disparity in sentencing” claim. (716) Amending its earlier opinion in this case, the Ninth Circuit said the record adequately explained the disparity in the sentences of defendant and his coconspirators. Defendant was the supplier of the drug organization. His codefendants cooperated with the prosecution and testified pursuant to plea agreements. Citing U.S. v. Carpenter, 914 F.2d 1131, 1136 (9th Cir. 1990), the court said that “[b]ecause the disparity was not unwarranted, Shabani cannot base a challenge to his sentence solely on the lesser sentence given to his coconspirators.” U.S. v. Shabani, 48 F.3d 401 (9th Cir. 1995).
9th Circuit says challenge may not be based solely on codefendant’s lesser sentence. (716) Defendant argued that because the purpose of the sentencing guidelines is to seek uniformity in sentencing, he should not have received a greater sentence than did his coconspirators. The Ninth Circuit rejected the argument, reiterating that “[a] defendant may not base a challenge to his sentence solely on a lesser sentence given to his codefendant.” U.S. v. Shabani, 48 F.3d 401 (9th Cir. 1995).
9th Circuit rejects claim of disparity even though codefendant was not sentenced for amount under negotiation. (716) Defendant claimed there was an unlawful disparity between his sentence and that of his co-defendant because he was sentenced based on the weight of cocaine under negotiation—30 kilos—while his codefendant was sentenced only for the nine kilos actually delivered. The 9th Circuit found no error, noting that “disparity in sentencing is not by itself, a sufficient ground for attacking an otherwise proper sentence under the guidelines.” Defendant could not rely on the factual findings made by the co-defendant’s judge because “[a]lthough unilateral collateral estoppel exists in the civil arena, we do not apply it in criminal cases.” U.S. v. Valdez-Soto, 31 F.3d 1467 (9th Cir. 1994).
9th Circuit holds that disparity in sentencing codefendant is not a basis to challenge the guidelines. (716) The codefendant entered into a plea agreement that allowed him to avoid a sentence enhancement that the defendant suffered. Defendant argued that to sentence him under different standards than were used for his codefendant would defeat the purpose of the guidelines by creating disparity in sentencing similarly-situated defendants. The 9th Circuit rejected the argument, holding that “a disparity in sentencing among codefendants is not, by itself, a sufficient ground for attacking an otherwise proper sentence under the guidelines. Rather, a defendant can only challenge his sentence by showing that it was the “result of incorrect or inadmissible information or an incorrect application of the sentencing guidelines.” U.S. v. Taylor, 991 F.2d 533 (9th Cir. 1993).
9th Circuit reverses downward departure that was based on lesser culpability and disparity. (716) The district court departed downward from a guideline range of 37-46 months to a 30-month sentence to eliminate the disparity between the co-defendant’s 46-month sentence and to recognize defendant’s lesser culpability. The 9th Circuit reversed because the district court failed to find that the lesser culpability was not adequately taken into consideration by the guidelines. The defendant received a four-level reduction based on his minimal participation. In addition, a district court may not depart downward to correct sentencing disparities between co-defendants sentenced under the Guidelines. U.S. v. Petti, 973 F.2d 1441 (9th Cir. 1992).
9th Circuit says disparity between guidelines sentence and coconspirators’ “old law” sentence did not violate equal protection. (716) In U.S. v. Ray, 920 F.2d 562 (9th Cir.), as modified, 930 F.2d 1368 (9th Cir. 1990), the 9th Circuit permitted the district court to depart downward to equalize the defendant’s guideline sentence with his codefendants’ non-guideline sentences which were imposed during the time the guidelines were held unconstitutional in the Ninth Circuit. The Ninth Circuit permits such “old law/new law” disparity departures, while forbidding disparity departures where all the codefendants are sentenced under the guidelines. Here, the defendant argued that his 10 year guideline sentence violated equal protection because his coconspirators’ 10 and 13 year “old law” sentences were subject to greater good time credits and perhaps parole. In this reissued opinion, the court rejected the merits of the equal protection challenge, finding a district judge is not required to depart in order to equalize a defendant’s sentence with that of a co-defendant not sentenced under the guidelines. The court lacked appellate jurisdiction to consider the discretionary refusal to depart. U.S. v. Kohl, 972 F.2d 294 (9th Cir. 1992).
9th Circuit overturns downward departure intended to equalize sentences of state and federal defendants. (716) The 9th Circuit held that equalization of the sentences received by codefendant’s is not permissible. This ground for departure was reviewed and rejected by the Sentencing Commission. The court found that the circumstances that created separate federal and state prosecutions in this case were not “highly unusual” but were only fortuitous. Equalizing the sentences of these two codefendants would simply create increased disparity between federal defendants. U.S. v. Vilchez, 967 F.2d 1351 (9th Cir. 1992).
9th Circuit says that departure to “equalize” codefendants’ sentences may be warranted in unusual circumstances. (716) In U.S. v. Ray, 930 F.2d 1368, 1372-73 (9th Cir. 1990), the 9th Circuit said that where unusual circumstances are present, departure for equalization of codefendants sentences may be warranted. Here, as in Ray, the disparity was caused by the fact that some codefendants received pre-guidelines sentences giving the judge more discretion. The case was remanded to permit the district court to state its reasons as to how much, if any, of its downward departure was justified by the desire to equalize the codefendant’s sentences. U.S. v. Boshell, 952 F.2d 1101 (9th Cir. 1991).
9th Circuit rules that disparity among codefendants is not a basis for attacking a guideline sentence. (716) Defendant argued that counting sentences for offenses occurring after the present offense promoted disparity in sentencing because one defendant will have a higher criminal history point total than another who committed the same offense, but had not yet been sentenced for it. The 9th Circuit rejected the argument, noting that “disparity in sentencing among codefendants is not, by itself, a sufficient ground for attacking an otherwise proper sentence under the guidelines.” U.S. v. Hoy, 932 F.2d 1343 (9th Cir. 1991).
9th Circuit upholds downward departure to correct disparity caused by holding guidelines unconstitutional. (716) The district court departed downward from about 27 years to 12 years on the ground that the guideline sentence was disproportionately long compared to the 5- to 6-year sentences imposed on codefendants who had been sentenced after the 9th Circuit held the guidelines unconstitutional in the Gubiensio case but before the guidelines were upheld by the Supreme Court in U.S. v. Mistretta, 488 U.S. 361 (1989). In a 2-1 opinion the 9th Circuit upheld the downward departure, holding that it was “unlikely that the Commission ever contemplated the 9th Circuit’s brief flirtation with rebellion in the Gubiensio case.” Noting that “disparity was said to be one of the most important evils the guidelines were in-tended to cure,” the court held that “on these unusual facts” the district court properly departed downward. Judge Kozinski dissented, arguing that the ruling was contrary to the holding of U.S. v. Enriquez-Munoz, 906 F.2d 1356 (9th Cir. 1990). U.S. v. Ray, 920 F.2d 562 (9th Cir. 1990), amended, 930 F.2d 1368 (9th Cir. 1991).
9th Circuit upholds “disparate” sentences where defendants were convicted of different crimes. (716) The 9th Circuit upheld “disparate” sentences for counterfeiting, noting that one defendant was convicted of possessing counterfeit money, whereas the other was found guilty of both conspiring to pass and distribute counterfeit money as well as the substantive crime of transferring and delivering United States currency. “Therefore the trial judge was justified in treating them differently.” U.S. v. Changa, 901 F.2d 741 (9th Cir. 1990).
9th Circuit rules disparity in sentence between co-defendants was not an abuse of discretion. (716) After both defendants were convicted by a jury of bank misapplication and other offenses, the trial judge sentenced one to a total of five years and the other to a total of only 537 days. Noting that “[g]enerally, the imposition of disparate sentences alone is not an abuse of discretion,” the 9th Circuit upheld the sentences here, finding no abuse of discretion. U.S. v. Castro, 887 F.2d 988 (9th Cir. 1989).
10th Circuit says court is not required to consider sentences received by state court defendants. (716) Defendant pled guilty to oxycodone charges. Her guideline range was 57-71 months, but the district court sentenced her to 48 months. She argued on appeal that the district court erred by refusing to consider the disparity between her sentence and similarly situated defendants sentenced in Utah state court. She argued this comparison was appropriate because this type of crime was typically prosecuted in state court where lesser sentences are imposed. The Tenth Circuit disagreed, holding that 18 U.S.C. § 3553(a)(6) authorizes consideration of disparate sentences among and between federal defendants, and does not require the court to also consider sentences received by similarly situated state court defendants. See U.S. v. Branson, 463 F.3d 1110 (10th Cir. 2006). Although defendant argued that Branson was not controlling, she provided little analysis and cited no authority that would permit the panel to overrule or distinguish it. U.S. v. Wiseman, 749 F.3d 1191 (10th Cir. 2014).
10th Circuit says co-conspirator’s shorter sentence did not rebut presumption of reasonableness for guideline sentences. (716) Five defendants, all family members or close family friends, were convicted of counts related to a large scale cocaine trafficking scheme. The sentences for all five defendants were within the guideline range, and therefore were entitled to a presumption of reasonableness on appeal. The Tenth Circuit ruled that the shorter sentence received by Carlos, a co-conspirator, did not rebut this presumption of reasonableness. A district court may consider sentencing disparities between co-defendants, but the purpose of the Guidelines is not to eliminate disparities among defendants, but rather to eliminate disparities among sentences nationwide. The disparity was explainable because Carlos pleaded guilty and cooperated with the government by testifying extensively at trial. U.S. v. Zapata, 546 F.3d 1179 (10th Cir. 2008).
10th Circuit says consideration of co-defendant sentencing disparity was not improper. (716) Defendant was convicted at trial of one count related to the production of a videotape depicting the sexual abuse of a 13-year old girl. A more culpable co-defendant pled guilty to two counts and was sentenced to the statutory minimum of 120 months. Defendant’s guideline range was 168-210 months, but the district court sentenced him to 120 months’, citing discomfort with imposing a higher sentence than the co-defendant received based on defendant’s decision to go to trial. The court also found that a 10-year sentence was “reasonable, reflected the seriousness of defendant’s offense, promoted respect for the law, and provided just punishment.” The Tenth Circuit affirmed, noting that post-Gall, co-defendant disparity is not a per se improper factor, so there was no procedural error. And the 120-month sentence was substantively reasonable. The variance was primarily based on defendant’s relatively minor role in the offense. The court found that defendant’s lesser culpability, offset by his failure to accept responsibility, supported the same term of imprisonment as his co-defendant’s greater culpability and acceptance of responsibility. This conclusion was not an abuse of discretion. U.S. v. Smart, 518 F.3d 800 (10th Cir. 2008).
10th Circuit upholds consideration of criminal history and defendant’s role in assault as grounds for variance above guideline range. (716) Defendant was sentenced for bank robbery above the advisory guideline range because the district court believed the guidelines failed to account for defendant’s criminal history and his role in assaulting a bank employee. Defendant argued that his 105-month sentence was unreasonable because the court simply increased his sentence to reach a sentence comparable to a co-defendant’s sentence, who had a different criminal history and therefore had a higher guideline range. The Tenth Circuit held that the sentence was reasonable. Although defendant and his co-defendant fell within different criminal history categories, the district court concluded that their records were quite similar and the guidelines did not adequately account for that similarity. The co-defendant received criminal history points because he committed the bank robbery while on parole or within two years of his release from incarceration, while defendant missed this benchmark by only 10 days. In addition, defendant’s conduct was more serious than his co-defendant’s because defendant was the one who actually assaulted the bank manager. Given the court’s careful explanation of its reasoning as to why defendant’s guideline calculation underestimated his culpability, there was substantial justification for the court’s divergence from the guideline range. U.S. v. Shaw, 471 F.3d 1136 (10th Cir. 2006).
10th Circuit holds that 360-month sentence for career offender was reasonable. (716) Defendant argued that his 360-month sentence for armed bank robbery was unreasonable, citing the 155-month sentence received by his co-defendant. He also contended that the court treated the guidelines as de facto mandatory, and that he should not have been designated as a career offender. The Tenth Circuit rejected all of these arguments and affirmed the 360-month sentence. The reason defendant received a sentence so much longer than his co-defendant was defendant’s status as a career offender. Although the court imposed a sentence within the guideline range of 360 months to life imprisonment, the court did not treat the guidelines as mandatory. The court properly sentenced defendant as a career offender. The government submitted certified documentation to the district court establishing that defendant was over 18 years old at the time of the armed robbery. There was no dispute that attempted armed robbery is a crime of violence under § 4B1.2(1)(a). Finally, defendant had prior convictions for possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and assault and battery on a peace officer. These felony convictions were either crimes of violence or controlled substance offenses under § 4B1.2(a) and (b). U.S. v. Davis, 437 F.3d 989 (10th Cir. 2006).
10th Circuit rules disparities caused by charging and plea bargaining policies not grounds for departure. (716) Defendant pled guilty to illegally reentering the U.S. following deportation, in violation of 8 U.S.C. § 1326(a). He admitted his prior deportation was subsequent to an aggravated felony conviction, and that therefore, he was subject to the enhanced penalties in § 1326(b)(2)(B). He sought a downward departure on the basis of a sentencing disparity among the federal districts in illegal reentry cases. He claimed that prosecutors in several districts allowed defendants to plead guilty to the lesser charge of improper entry under § 1325(a), in exchange for a guilty plea. Agreeing with the only two circuits who have decided this issue, the Tenth Circuit held that the existence of sentencing disparities among the various federal districts, caused by varying charging and plea bargaining policies of the individual U.S. Attorneys, was not a proper ground for departure. See U.S. v. Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000) (en banc); U.S. v. Bonnet-Grullon, 212 F.3d 692 (2d Cir. 2000), superseded on other grounds by statute, U.S. v. Leiva-Deras, 359 F.3d 183 (2nd Cir. 2004). The discretionary actions of out-of-district prosecutors do not speak to a defendant’s individual culpability, and thus cannot amount to a mitigating circumstance allowing the court to depart. Moreover, such departures would mandate cumbersome evidentiary hearings in every case, an approach at odds with the Supreme Court’s view of departure proceedings. U.S. v. Armenta-Castro, 227 F.3d 1255 (10th Cir. 2000).
10th Circuit rejects downward departure based on age, drug quantity, lenient sentences, and sentence disparity. (716) The district court departed downward from the career offender guideline, citing (1) defendant’s young age at the time of his prior convictions; (2) the small quantities of drugs involved in the current and prior offenses; (3) the prior lenient sentences; and (4) the lesser sentences of his co-defendants. The Tenth Circuit reversed. Defendant’s age did not make his case different from the heartland of career offender cases. Defendant committed crimes throughout his adult life, excepting periods when he was incarcerated. Nothing suggested his age at the time of his first offense had any bearing upon his likely recidivism. The district court abused its discretion in relying on drug quantity. Defendant had not two, but three prior convictions. Two were for drug trafficking and one was for armed robbery. All three crimes occurred within ten years of the current offense. The current crime involved one ounce of cocaine base, more than five times the amount required to trigger the statutory five to 40 year sentencing range. The guidelines discuss prior lenient sentences as a basis for an upward departure. See Background Commentary to § 4A1.3. Thus, at the very least, the court was required to explain why prior lenient sentences should be a ground for a downward departure here. Finally, a mere difference between co-defendants’ applicable guideline ranges will not justify a departure. See U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997). Defendant was not similarly situated to his co-defendants, who pled guilty and cooperated with the government. U.S. v. Caldwell, 219 F.3d 1186 (10th Cir. 2000).
10th Circuit rejects departure based on sentencing disparity and parental influence. (716) In U.S. v. Contreras, 108 F.3d 1255 (10th Cir. 1997), the Tenth Circuit reversed a downward departure based on the sentencing disparity between defendant and co-conspirator Denogean. At resentencing, the district court again departed downward. Once again, the Tenth Circuit reversed, holding that the district court abused its discretion in departing based on the sentencing disparity between defendant and co-conspirator Villalba. As with Denogean, defendant and Villalba were not similarly situated (Villalba pled guilty to a lesser charge). Thus, any disparity in their sentences was not unwarranted. The court also ruled that the parental influence wielded by defendant’s father, the leader of the drug conspiracy, did not justify a departure. Such influence is most appropriately analyzed under § 5K2.12 (Coercion and Duress). Although defendant depended on her father financially, § 5K2.12 says that economic hardship and personal financial difficulties do not warrant a departure. As to emotional coercion, defendant acknowledged that her father never threatened her with physical harm. Judge McKay dissented. U.S. v. Contreras, 180 F.3d 1204 (10th Cir. 1999).
10th Circuit reverses departure for disparity, minor role, coercion, lack of criminal history, and family responsibility. (716) Defendant was convicted of drug charges. The district court departed downward based on five factors: (1) the disparity of sentences between defendant and a co-defendant; (2) defendant’s minor role; (3) the court’s finding that defendant was manipulated by her co-defendant; (4) defendant’s lack of criminal history; (5) defendant’s family responsibilities as the sole support for her six-year old son and partial support for her parents. The Tenth Circuit reversed. A departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. Defendant’s minor role is accounted for by § 3B1.2. Coercion must involve a threat of physical injury, substantial damage to property or similar injury. The only evidence was defendant’s comment that she refused to testify against her co-defendant because she was scared. Also, coercion must occur at the time of the offense. Defendant’s lack of criminal history was accounted for in criminal history category I. Defendant’s family responsibilities were not extraordinary. U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997).
10th Circuit holds that disparity in sentences did not warrant § 2255 relief. (716) Defendant pled guilty in Wyoming district court to drug conspiracy charges and received a 15-month sentence. He later sought resentencing because his supplier and co-conspirator had pled guilty in a Utah district court to the same charges and received only a term of probation. The Wyoming district court, relying on both its “inherent jurisdiction” and Rule 35, vacated defendant’s original sentence and resentenced him to three years probation. This was reversed in U.S. v. Blackwell, 81 F.3d 945 (10th Cir. 1996) on the ground that the district court lacked jurisdiction to resentence defendant. Defendant then filed this § 2255 motion. The district court granted him relief because (1) the disparity between defendant’s and his supplier’s sentence justified relief, (2) the district court was misinformed at defendant’s original sentence as to the status of the supplier’s case, and (3) defendant did not receive effective assistance of counsel based on his counsel’s failure to learn of the supplier plea and probation. The Tenth Circuit again reversed, holding that the disparity between defendant’s and his supplier’s sentence was not a basis for relief. Every circuit has held that disparity between sentences of co-conspirators is not a proper basis for sentence reduction. The other two bases relied on the court were, at heart, based on disparity between the two sentences. U.S. v. Blackwell, 127 F.3d 947 (10th Cir. 1997).
10th Circuit reverses departure where co-defendant’s lower sentence was based on plea agreement and criminal history. (716) Defendant was convicted of drug charges. The district court departed from a guideline range of 360 months to life to impose a 240-month sentence. The departure was intended to remedy a perceived disparity between defendant’s guideline range and the 30-month sentence a co-defendant received under his Rule 11(e)(1)(C) plea agreement. The Tenth Circuit reversed the downward departure because the disparity was explained by the facts on the record. The co-defendant entered into a plea agreement to a lesser charge, his criminal history was substantially less than defendant’s, and defendant supplied drugs to the co-defendant for distribution. The district court did not identify any factors other any sentencing disparity that took defendant’s case outside the heartland of the guideline range. Thus, there was no basis to depart downward. U.S. v. Maden, 114 F.3d 155 (10th Cir. 1997).
10th Circuit rejects downward departure to equalize sentences. (716) Defendant participated in a large drug organization managed by her father. The district court noted that defendant’s 235-293 month guideline range was substantially higher than that of an equally or even more culpable co-defendant, and departed downward to 120 months. Without deciding whether disparity in sentences between co-defendants is an appropriate basis for departure, the Tenth Circuit held that the departure was an abuse of discretion since the two defendants were not similarly situated. Defendant went to trial and was convicted on four counts. The co-defendant, on the other hand, accepted responsibility for her criminal conduct and pled guilty to a lesser charge. Defendant claimed she was willing to plead guilty but the government would not offer her a similar plea bargain because her father would not agree to a plea bargain. However, refusing to offer a plea bargain is within the government’s prosecutorial discretion, and a judge may not invade this discretion. U.S. v. Contreras, 108 F.3d 1255 (10th Cir. 1997).
10th Circuit holds that court lacked authority to resentence defendant. (716) The district court originally sentenced defendant to 15 months for conspiring to distribute cocaine. However, after learning that defendant’s co conspirator received a term of five years’ probation, the district court held a hearing 72 days after the initial sentencing and resentenced defendant to three years’ probation. The Tenth Circuit held that the district court lacked authority to resentence defendant. Rule 35 empowers a court to correct a sentence in only three instances: (a) to correct an illegal sentence on remand from the court of appeals, (b) to reduce a sentence on motion of the government to reflect substantial assistance, and (c) to correct an arithmetical, technical or other error within 7 days after sentencing. None of these applied here. Rule 36 only permits correction of clerical mistakes, and does not authorize a substantive sentencing modification. The court has no “inherent authority” to resentence a defendant at any time. U.S. v. Blackwell, 81 F.3d 945 (10th Cir. 1996).
10th Circuit finds disparate sentences were based on different levels of participation. (716) Three defendants complained that they received more severe sentences than a co-defendant who pled guilty early in the trial. The Tenth Circuit found that the disparate sentences were properly based on real differences between the defendants. The three complaining defendants defrauded 33 clients, and the court sentenced them for these clients’ losses. Their co-defendant was only peripherally involved in the conspiracy, and the court only held him responsible for the losses related to his participation. U.S. v. Massey, 48 F.3d 1560 (10th Cir. 1995).
10th Circuit upholds disparate sentences between co-defendants. (716) Defendant challenged his sentence because it was much greater than his co-defendant’s sentence. The 10th Circuit upheld the disparate sentences, finding they were justified by significant differences between the defendants’ roles in the criminal activity and in their criminal histories. U.S. v. Allen, 24 F.3d 1180 (10th Cir. 1994).
10th Circuit holds that sentencing disparity does not violate 8th Amendment. (716) Defendant complained that his sentence was so disproportionate to the sentence received by his co-conspirator as to constitute cruel and unusual punishment. The co-conspirator testified that he had transported about 1040 ounces of crack annually between 1988 and 1990, while defendant was convicted of transporting only 16-1/2 ounces of crack on one occasion. The 10th Circuit found that the sentencing disparity did not violate the 8th Amendment. Defendant’s sentence fell within the guideline range. Any disparity could be explained by the fact that the co-conspirator cooperated with the government in the prosecution of others, while defendant refused. U.S. v. Rackstraw, 7 F.3d 1476 (10th Cir. 1993).
10th Circuit reverses downward departure to equalize sentence with co-defendant. (716) The district court departed downward to equalize defendant’s sentence as compared to that of his co-defendant. The 10th Circuit reversed the departure. Disparate sentences are allowed where, as here, the disparity is explained by the facts on the record. There was no similarity in the participation, culpability, criminality and conduct of the defendants. Defendant was clearly not a minimal participant, while his co-defendant was. U.S. v. Garza, 1 F.3d 1098 (10th Cir. 1993).
10th Circuit rules defendant’s sentence was not disproportionate. (716) Defendant asserted that since he received the second most severe sentence of the four co-conspirators, it was clearly too severe for his level of involvement. The 10th Circuit affirmed the sentence since it was within statutory limits, within the applicable guideline range, and was not disproportionate to the crime. When two or more defendants are convicted of the same crime a sentencing difference may be expected since the guidelines dictate a sentence based upon each defendant’s conduct and criminal history. Such sentencing differences do not make a sentence disproportionate. U.S. v. Youngpeter, 986 F.2d 349 (10th Cir. 1993).
10th Circuit affirms refusal to depart based on co-defendant’s disparate sentence. (716) The 10th Circuit affirmed that a trial court’s failure to grant a downward departure based solely on a co-defendant’s disparate sentence did not constitute an abuse of discretion. U.S. v. Underwood, 982 F.2d 426 (10th Cir. 1992), abrogated on other grounds by U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000).
10th Circuit says defendant’s disproportionate sentence did not violate 8th Amendment. (716) The 10th Circuit rejected defendant’s argument that the disproportionality of his 235-month sentence as compared to the 5-year sentences received by his co-conspirators constituted cruel and unusual punishment. First, defendant did not allege that his sentence was grossly disproportionate to his crimes, which is a critical factor in assessing whether a sentence is so disproportionate so as to constitute cruel and unusual punishment. Moreover, even if stated properly, the claim would fail. Inasmuch as the Supreme Court has held that a life sentence for possession of 650 grams of cocaine base did not violate the 8th Amendment, then a 235-month sentence for possessing with intent to distribute a kilogram of cocaine base does not violate the 8th Amendment. U.S. v. Easter, 981 F.2d 1549 (10th Cir. 1992).
10th Circuit refuses to review co-defendant’s disparate sentences. (716) Defendant complained that his 57-month sentence was arbitrary, since his wife, who he contended was more culpable, received a 46-month sentence. The 10th Circuit refused to review the district court’s reasons for imposing the different sentences. As long as the sentences fall within the applicable guideline range, they are not reviewable by the appellate court. U.S. v. Hollis, 971 F.2d 1441 (10th Cir. 1992).
10th Circuit expresses concern at disparity between sentences of conspirators who cooperated and those who stood trial. (716) In a large drug conspiracy prosecution against numerous defendants, the 10th Circuit affirmed the long sentences each defendant who went to trial received, since there was evidence that the district court carefully considered the extent of each defendant’s participation in the conspiracy and the quantity of drugs that was reasonably foreseeable to each. However, it joined the district court in expressing its concern for the radical disparity between the sentences these defendants received (210 months, 210 months, 290 months and life imprisonment) and the sentences imposed upon those defendants who cooperated with the government (5 years probation, one year supervised release, five years supervised release, and 5 years probation). The concern was not obviated by the government’s representation that it gave all of the defendants an opportunity to cooperate in exchange for leniency. “Rather, it is heightened by the prospect that the use of this tactic in a large-scale conspiracy prosecution might effectively chill a defendant’s right to trial.” U.S. v. Evans, 970 F.2d 663 (10th Cir. 1992).
10th Circuit rejects disparity claim where co-defendant was convicted of additional offenses. (716) Defendant complained that she received a 15-year sentence for conspiracy whereas her equally culpable husband received only a 10-year sentence for the same offense. The 10th Circuit rejected this claim since the two defendants had different records and pled guilty to different charges. Defendant was sentenced only for her role in the drug conspiracy. By contrast, the district court had to devise a total “package” for her husband; he was sentenced both for his role in the drug conspiracy and for various firearms offenses. Although he only received a 10-year sentence for the drug conspiracy charge, he received a total sentence of 20 years. U.S. v. Sullivan, 967 F.2d 370 (10th Cir. 1992).
10th Circuit affirms different upward departures for co-defendants. (716) The district court originally departed upward for three defendants: the first defendant received a 120-month sentence, the second a 72-month sentence, and the third a 36-month sentence. The 10th Circuit, on defendants’ first appeal, remanded for resentencing so that the district court could explain the reasons for the disproportionate sentences. On resentencing, the first two defendants received 72-month sentences, while the third defendant received a 36-month sentence. The 10th Circuit affirmed. The third defendant was not similarly situated to the other two because of his offense level and criminal history. In addition, there were other mitigating factors, including the third defendant’s very young age, problems resulting from peer pressure, and his continued involvement with mental health counseling. U.S. v. St. Julian, 966 F.2d 564 (10th Cir. 1992).
10th Circuit rejects claim based upon co-defendant’s disparate sentence. (716) Defendant contended that his sentence was impermissibly disparate when compared to his co-defendants. Following Circuit precedent, the 10th Circuit rejected his claim since it was based solely upon the lesser sentence imposed on a co-defendant and because his sentence fell within the applicable guideline range. U.S. v. Jackson, 950 F.2d 633 (10th Cir. 1991).
10th Circuit affirms determination of different drug quantities for co-defendants. (716) Defendant challenged the district court’s determination that his co-defendant was responsible for less than 100 kilograms of marijuana, while he was responsible for more than 100 kilograms. Defendant contended that the court may not weigh the same evidence with respect to each defendant differently. The 10th Circuit affirmed, finding the disparate findings were not based on different interpretations of the same evidence. In determining the amount applicable to defendant, the court explained that its finding was supported by evidence not applicable to defendant. All marijuana transfers took place at defendant’s business and thus he was responsible for them. In contrast, the co-defendant was a mere courier. U.S. v. Cox, 934 F.2d 1114 (10th Cir. 1991).
10th Circuit reverses upward departure where co-defendants received disparate sentences. (716) Defendant and two co-defendants were each convicted and sentenced for maintaining a crack house. The district court departed upward in each case because of the amount of cocaine involved in the offense. However, defendant’s departure was 48 months greater than one of the co-defendants and 68 months greater than the other co-defendant, even though the departure in each case was based upon the same quantity of drugs. The 10th Circuit reversed and remanded for resentencing. The purpose of the guidelines is to narrow disparity in sentences. “The district court’s disproportionate upward departure from [defendant’s] guideline sentence thwarts the very purpose of the guidelines and is therefore invalid.” U.S. v. Sardin, 921 F.2d 1064 (10th Cir. 1990).
10th Circuit reverses upward departure where co-defendants received disparate sentences. (716) Defendant and two co-defendants were each convicted and sentenced for maintaining a crack house. The district court departed upward in each case because of the amount of cocaine involved in the offense. However, defendant’s departure was 48 months greater than one of the co-defendants and 68 months greater than the other co-defendant, even though the departure in each case was based upon the same quantity of drugs. The 10th Circuit reversed and remanded for resentencing. The purpose of the guidelines is to narrow disparity in sentences. “The district court’s disproportionate upward departure from [defendant’s] guideline sentence thwarts the very purpose of the guidelines and is therefore invalid.” U.S. v. Sardin, 921 F.2d 1064 (10th Cir. 1990).
10th Circuit rejects argument that defendant was given no opportunity to be heard on disparity issue at sentencing. (716) After defendant was sentenced to 121 months, defense counsel pointed out that the codefendant had been sentenced to only 70 months. She said that the guidelines “are supposed to be the same for codefendants.” The court interrupted and said “that will be all.” On appeal, the 10th Circuit found that counsel was afforded an adequate opportunity to be heard. Defendant’s “position on the disparity was understood by the court.” Moreover “the facts giving rise to the disparity” could have been addressed be-fore sentencing. “Furthermore, a sentencing statement was filed and argument was heard on the matters which determined [defendant’s] sentence.” U.S. v. Trujillo, 906 F.2d 1456 (10th Cir. 1990).
10th Circuit upholds disparate sentences for codefendants based on guideline adjustments. (716) Based on the amount of cocaine, the base offense level for both defendants was 32. The codefendant’s sentence was reduced by two levels for acceptance of responsibility and four levels for being a minimal participant. Thus the codefendant received a guideline sentence of only 70 months, while defendant was sentenced to 121 months. The 10th Circuit rejected the defendant’s argument that this disparity violated his right to equal protection and due process. Nor was the district court required to state reasons for imposing disparate sentences where both sentences were within the guideline range. U.S. v. Trujillo, 906 F.2d 1456 (10th Cir. 1990).
10th Circuit resists characterizing disparate sentence as “violation of law.” (716) The defendant argued that the district court violated the law in not departing downward because other defendants involved in the conspiracy received relatively lighter sentences. According to the presentence report however, one codefendant was sentenced in a different federal court and another was not sentenced under the guidelines. The 10th Circuit held “we are loath to conclude” that the district court “violated the law” where the lighter sentences of his coconspirators either “arise out of a different court or from different laws.” The court noted that to the extent that defendant was arguing that the district court abused its discretion in refusing to depart downward, the court had no jurisdiction to review the contention. U.S. v. Richardson, 901 F.2d 867 (10th Cir. 1990).
11th Circuit approves 1062-month sentence for multiple § 924(c) offenses. (716) Defendant was convicted of multiple counts arising from a string of armed robberies. He contended that his 1,062-month sentence was unreasonable because the nature of his offenses did not warrant such a severe sentence, and his co-conspirator, Kelly, received only 384 months. The Eleventh Circuit found no abuse of discretion. At sentencing, the district court observed that defendant failed to accept responsibility for his violent offenses, failed to show any remorse, and would likely be a recidivist if released from incarceration. The district court explicitly pointed to the nature and circumstances of the offenses, discussed the need to protect the public from defendant’s future criminal conduct, and referenced defendant’s personal characteristics. The district court also did not create an unwarranted sentencing disparity by sentencing defendant to a 1,062-month term while his co-conspirator received only a 384-month sentence. Defendant was not similarly situated to Kelly because Kelly pled guilty to only a few counts. Defendant went to trial and was convicted of nine counts, including numerous § 924(c) offenses that carried mandatory consecutive sentences of at least 25 years. U.S. v. King, __ F.3d __ (11th Cir. June 9, 2014) No. 12-16268.
11th Circuit approves life sentence for coercing vulnerable girls to work as prostitutes. (716) Defendant preyed on vulnerable girls, inducing them to come to his house, where he forced them to strip and to act as prostitutes for his house “parties.” He was convicted of child sex trafficking and related charges. He argued that his life sentence was substantively unreasonable, pointing to the 156-month sentence imposed on his common-law wife. He also claimed there was no evidence that he caused physical or emotional harm to his victims. The Eleventh Circuit upheld the life sentence. The guidelines recommended life imprisonment, and there was nothing in the record indicating that the district court did not consider the § 3553(a) factors or that it unreasonably balanced those factors. Defendant’s claim that there was no evidence that his teenage victims suffered physical or emotional harm was itself unreasonable. Sexual crimes against minors causes substantial and long-lasting harm. Defendant was not similarly situated to his wife, who pled guilty and cooperated with the government. Defendant was also the ringleader of the enterprise; his wife was not. U.S. v. Mozie, __ F.3d __ (11th Cir. May 22, 2014) No. 12-12538.
11th Circuit rejects downward variances for corrections officers who abused prisoners. (716) Defendants, corrections officers at a Florida state prison, were convicted of abusing and assaulting prisoners. Another officer, Griffin, pled guilty to misdemeanor charges carrying a maximum term of one year. The district court stated that it was troubled by the disparity between the sentences faced by defendants and Griffin. Thus, the court sentenced the first defendant to 12 months, and second defendant to only one month. The Eleventh Circuit ruled that the sentences were substantively unreasonable because they failed to “reflect the seriousness of the offense, and failed to promote respect for the law, and to provide just punishment for the offense.” The sentences were far below the advisory guideline ranges. A major variance requires a more significant justification than a minor one, and the court’s only justification was that Griffin was getting a lower sentence. This alone could not account for dramatic variances of over 90 percent for both defendants. U.S. v. McQueen, 727 F.3d 1144 (11th Cir. 2013).
11th Circuit upholds guideline sentence for mastermind of massive fraud scheme. (716) Defendant argued that his guideline sentence was unreasonable because it varied greatly from the sentences of his co-defendants and the sentences of other high-profile fraud defendants nationwide. The Eleventh Circuit found no error. First, the co-defendants who received much more lenient sentences were not leaders in the conspiracy—he was the leader and kingpin who orchestrated the whole thing. As for others convicted in high profile fraud cases nationwide, the panel “was not convinced that a sentence imposed in this circuit is subject to a national grade curve.” Since the judge correctly calculated and carefully reviewed defendant’s guidelines range, the judge necessarily gave significant weight and consideration to the need to avoid unwarranted sentencing disparities. Defendant put in place and ran a massive conspiracy involving $110 million in fraudulent loans, almost all of which went into default, causing more than $38 million in direct losses to lenders. The people defendant used in his scheme suffered greatly, and the economic pain he inflicted to satisfy his own greed was felt by countless homeowners. His 336-month sentence was not substantively unreasonable. U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).
11th Circuit rules defendant’s sentence was reasonable even though others were not prosecuted. (716) Defendant recruited straw buyers for a massive real estate fraud scheme. She argued that her 87-month sentence, which was at the bottom of her 87-110 month Guidelines range, was substantively unreasonable because the straw buyers she recruited were equally or more blameworthy than she, but were not prosecuted. The Eleventh Circuit noted that the government’s decision to prosecute defendant but none of those who were merely straw buyers did not render defendant’s sentence unreasonable. Whether the straw buyers were victims or uncharged co-conspirators was irrelevant to the reasonableness of defendant’s sentence. U.S. v. Hill, 643 F.3d 807 (11th Cir. 2011).
11th Circuit says less severe sentences for others did not make defendant’s sentence unreasonable. (716) Defendant argued that his sentence was substantively unreasonable when contrasted with the less severe sentences his co-conspirators received. The Eleventh Circuit found that the other conspirators were not similarly situated, and thus the sentencing disparity was not unwarranted. Reeves, a target of the sting, entered a plea agreement with the government before trial and pleaded guilty. In exchange for his testimony at defendant’s trial and other assistance, the government dismissed certain charges and did not oppose Reyes request for a downward departure. Gutierrez entered a plea agreement and agreed to plead guilty and cooperate with the government in exchange for the dismissal of other charges and a recommendation for a downward departure at sentencing. Two other conspirators were juveniles at the time of the sting, and were prosecuted in state court as adults and released on probation. To require parity in sentencing between state and federal defendants would seriously undermine the goal of nationwide uniformity in the sentencing of similar defendants for similar federal offenses. U.S. v. Docampo, 573 F.3d 1091 (11th Cir. 2009).
11th Circuit says codefendant placed in pretrial diversion was not similarly situated. (716) Four men, including defendant and Kramer, were stopped by police in a car carrying burglary tools and homemade pipe bombs. Defendant and Kramer were indicted on charges related to the explosive devices. Kramer was placed in a pretrial diversion program; defendant proceeded to trial, was convicted, and sentenced to 44 months’ imprisonment. Defendant argued that his sentence was substantively unreasonable because of unwarranted disparities between his sentence of 44 months and Kramer’s enrollment in a pretrial diversion program. The Eleventh Circuit found no error, since defendant and Kramer were not similarly situated. Kramer was never prosecuted or convicted of any conduct, he was not sentenced, and he was not similarly situated to defendant. No unwarranted disparity existed. U.S. v. Spoerke, 568 F.3d 1236 (11th Cir. 2009).
11th Circuit holds that sentence disparity not grounds for below mandatory minimum sentence. (716) Defendant was convicted of drug conspiracy charges carrying a 120-month mandatory minimum sentence. See 18 U.S.C. § 841(b)(91)(A)(i). The district court nonetheless imposed an 80-month sentence to avoid a disparity between defendant’s sentence and those of his co-conspirators who had received sentences below 90 months. The government appealed, and the Eleventh Circuit reversed. The government did not file a substantial assistance motion, and defendant did not qualify for safety valve relief. Section 3553(a) does not authorize a district court to impose a sentence below the statutory mandatory minimum. It merely lists the factors the district court must consider in determining an appropriate sentence, one of which is the need to avoid unwarranted sentencing disparities. Section 3553(a) makes no mention of mandatory minimum sentences, much less purports to give the district court the authority to impose a sentence below the applicable statutory minimum sentence. Courts remain bound by statutes designating mandatory minimum sentences even after the remedial holding of Booker. Although the court’s concern for the disparity between defendant’s sentence and that of his co-conspirators was an appropriate factor to consider in determining where defendant’s sentence should fall between the applicable statutory minimum and maximum sentences, it did not provide a legal basis for imposing a sentence below the statutory minimum sentence. U.S. v. Castaing-Sosa, 530 F.3d 1358 (11th Cir. 2008).
11th Circuit rejects disparity in sentences as grounds for departure. (716) As one of its grounds for departure, the district court noted that the other suspects caught in the investigation of defendant’s neighborhood “were all more culpable than” defendant, and yet, because they had pled guilty, they received “significantly reduced sentences.” One suspect was never charged since he was a paid informant, and another received a sentence reduction to two years in prison. The Eleventh Circuit ruled that this was not an appropriate basis for departure under § 5K2.0. In U.S. v. Chotas, 968 F.2d 1193 (11th Cir. 1992), the court held that “the Sentencing Commission fully anticipated sentencing disparity between defendants involved in the same offense,” so to adjust a sentence for that reason without specifying a factor not adequately considered by the Guidelines is impermissible.” It was inappropriate as a matter of law for the court to depart under § 5K2.0 on the basis of an alleged disparity between the sentence defendant received and the sentences of his co-conspirators. U.S. v. Smith, 289 F.3d 696 (11th Cir. 2002).
11th Circuit refuses to invalidate departure even though co-conspirator did not receive same departure. (716) The district court departed upward under § 5K2.7 based on defendant’s involvement in a scheme to defraud Medicare. She claimed that the court’s failure to consider a § 5K2.7 departure for her co-conspirator indicated that the decision to depart was based on emotion and not on the facts of her case. She also claimed that this disparate treatment violated that principle of uniformity. The Eleventh Circuit disagreed. Disparity between the sentences imposed on co-defendants is generally not an appropriate basis for relief on appeal. U.S. v. Regueiro, 240 F.3d 1321 (11th Cir. 2001).
11th Circuit says defendant and co-conspirator not similarly situated. (716) Defendant argued that the district court mistakenly believed that it had no authority to depart based on the gross disparity between his sentence and White’s sentence, despite their similar conduct. The Eleventh Circuit concluded that the district court exercised its discretion in denying the departure based on its finding that defendant and White were not similarly situated. The court distinguished defendant’s situation from White’s, noting that unlike White, defendant chose to go to trial, which resulted in more evidence being presented against him,. Defendant also was charged with money laundering, unlike White, and defendant received an obstruction of justice enhancement. Thus, whether or not the court believed it had the authority to depart on the basis of a sentencing disparity, the court did not believe that any disparity existed here. U.S. v. Rudisill, 187 F.3d 1260 (11th Cir. 1999).
11th Circuit bars departure to reconcile disparity between federal and state sentences for co-defendants. (716) Defendant was convicted of drug charges. The district court departed downward under § 5K2.0 and sentenced him to 13 months to prevent disparate sentences between co-defendants sentenced under state law. The Eleventh Circuit held that a district court may not depart downward to reconcile disparity between federal and state sentences among co-defendants. Such departures would create system-wide disparities among federal sentences. Permitting departure based on a co-defendant’s sentence in state court would seriously undermine the goal of nationwide uniformity in the sentencing of similar defendants for similar federal offenses. U.S. v. Willis, 139 F.3d 811 (11th Cir. 1998).
11th Circuit rules court may not depart to avoid disparity between co-defendants. (716) Defendant argued that the district court erroneously concluded that it lacked discretion to depart downward in order to reduce the disparity between his sentence and those of co-defendants. The co-defendants were sentenced for cocaine hydrochloride, while defendant was sentenced for crack. The Eleventh Circuit, relying on U.S. v. Chotas, 968 F.2d 1193 (11th Cir. 1992), held that a sentencing judge may not depart in order to avoid an apparently unjustified disparity between co-defendants. U.S. v. Quinn, 123 F.3d 1415 (11th Cir. 1997).
11th Circuit rejects challenge based on short sentences for co-conspirators. (716) Defendant contended that the district court erred by sentencing him to a term in prison as long as or longer than some of his more involved co-conspirators. The 11th Circuit rejected this challenge, relying on circuit precedent holding that claims based on disparity between codefendants are “frivolous.” U.S. v. Bushert, 997 F.2d 1343 (11th Cir. 1993).
11th Circuit rejects claim based on disparity of sentence. (716) Defendant claimed that his sentence was excessive since a comparison of the offenses of defendant and a co-defendant showed that although both participated almost equally in the offense, defendant’s guideline sentence was substantially greater than the co-defendant’s sentence. The 11th Circuit upheld defendant’s sentence, noting that it previously had rejected as “frivolous” challenges to sentencing because a co-defendant received a less severe penalty. U.S. v. Hendrieth, 922 F.2d 748 (11th Cir. 1991).
D.C. Circuit finds no requirement to consider disparity between federal and D.C. guidelines. (716) Defendant was convicted in the D.C. District Court of various drug counts, and the court sentenced him within his 63-78 month guideline range. Defendant challenged on appeal the district court’s refusal to grant him a downward variance based upon the disparity between defen¬dants tried in federal district court and sentenced under the U.S. Sentencing Guidelines, and those tried in the Superior Court of the District of Columbia and sentenced under the District’s own guidelines. He maintained that his sentence under the latter would have been lower, and that a variance was therefore justified. The district court found that the provision upon which defendant based his request, §3553(a)(6), addressed unwarranted disparities only at the federal level, rather than disparities between federal and state sentences. The D.C. Circuit found no error. Under U.S. v. Washington, 670 F.3d 1321 (2012), sentence disparities between the U.S. and D.C. guidelines are insufficient to support a variance under §3553(a)(6). Although nothing precluded consideration of the D.C. guidelines in the exercise of the district court’s exercise of discretion, the district court here clearly understood that the U.S. Guidelines were advisory only. U.S. v. Williams, __ F.3d __ (D.C. Cir. Dec. 2, 2014) No. 13-3034.
D.C. Circuit says sentencing disparity was explained by three-level acceptance reduction. (716) Defendant argued that his 208-month sentence resulted in an unwarranted disparity between himself and co-defendant Bran, in contravention of 18 U.S.C. § 3553(a)(6). Bran, who the court found had played a leadership role in the drug conspiracy, received only 144 months, a sentence more than five years shorter than defendant’s sentence. However, Morales, a third co-defendant who played a role closer to defendant’s than Bran’s, was sentenced to 220 months, one year longer than defendant. The D.C. Circuit concluded that there was no error in the disparity between defendant and Bran, which disparity was entirely explained by Bran’s three-level acceptance of responsibility reduction for his having pleaded guilty after his jury hung, which lowered his Guidelines range to 168-210 months. U.S. v. Mejia, 597 F.3d 1329 (D.C. Cir. 2010).
D.C. Circuit rejects disparity among co-defendants as basis for downward departure. (716) The D.C. Circuit affirmed the district court’s determination that it lacked authority to depart downward based upon significant disparity between defendant’s sentence and others arrested with him. The very purpose of the guidelines was to eliminate disparity in the sentences of similarly situated defendant. The guidelines attempt to achieve uniform sentences across the nation, not within a particular criminal transaction. U.S. v. Williams, 980 F.2d 1463 (D.C. Cir. 1992).
D.C. Circuit upholds mandatory minimum sentence despite disparity with codefendant who pled guilty. (716) The D.C. Circuit rejected defendant’s argument that his mandatory minimum sentence was too harsh in comparison to a sentence given a similarly-situated defendant who had been given the opportunity to plea bargain. Plea bargaining is not a right guaranteed to defendants. U.S. v. Broxton, 926 F.2d 1180 (D.C. Cir. 1991).
Indiana District Court rules that departure to avoid sentencing disparity is not permitted. (716) The defendant argued that he should receive no greater sentence than more culpable codefendants. The Indiana District Court stated that “the argument seems to have little merit in light of the guidelines and their purpose.” The court found no case in which a codefendant’s sentence was approved as the basis for a departure from the guideline range. Moreover, the court ruled that “even if unjustifiable sentencing disparity were grounds for departure, the court would decline to depart here.” The codefendants’ lesser sentences were easily explained by guidelines provisions. Accordingly the court concluded “that departure based on sentencing disparity is neither permitted by law nor otherwise warranted by the facts of this case.” U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).
Indiana District Court rules that departure to avoid sentencing disparity is not permitted. (716) The defendant argued that he should receive no greater sentence than more culpable codefendants. The Indiana District Court stated that “the argument seems to have little merit in light of the guidelines and their purpose.” The court found no case in which a codefendant’s sentence was approved as the basis for a departure from the guideline range. Moreover, the court ruled that “even if unjustifiable sentencing disparity were grounds for departure, the court would decline to depart here.” The codefendants’ lesser sentences were easily explained by guidelines provisions. Accordingly the court concluded “that departure based on sentencing disparity is neither permitted by law nor otherwise warranted by the facts of this case.” U.S. v. Sergio, 734 F.Supp. 842 (N.D. Indiana 1990).
Article proposes resolving sentencing disparity among co-defendants. (716) Eric Lotke discusses the courts’ current refusal to permit departures to reduce disparity among the sentences of co-defendants. This position is inadequate in light of the goals of the guidelines and the reasons for co-defendant disparity. The current statutory authorization of departures provides an adequate basis for upholding departures to reduce disparity among co-defendants. Eric Lotke, Sentencing Disparity Among Co-Defendants: The Equalization Debate, 6 FED. SENT. RPTR. 116-19 (1993).