Disparity Case Analysis

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The biggest question raised by the decision is what defendants should do in order to show that their sentences are disparately long, relative to similar offenders.

Newsom cited three Seventh Circuit cases in which defendants received substantially shorter sentences, although convicted for crimes that were similar, but, in Newsom’s opinion, more egregious.

The court acknowledged some merit to this argument: “Newsom argues, not without reason, that his crimes were not as serious as any of these three (emphasis added).”

Nevertheless, the court found no unwarranted disparity for several reasons. First, it cited specific guideline factors warranting a longer sentence for Newsom.

Second, the court cited still other cases in which the defendants received comparable sentences for comparable behavior.

Third, the court wrote, “While comparisons are appropriate, it is important in the first instance to recall that the Guidelines were intended to create national uniformity, and that this goal remains important post-Booker. It is not enough for a defendant to argue that a few cases from any particular circuit seem to cast doubt on his sentence.”

Thus, even if were indisputable that Newsom was less culpable than the defendants in the three cases he cited, and there were no other cases involving similar conduct and similar sentences, the court’s discussion of national uniformity suggests that it would still have found the sentence reasonable.

It is thus not clear from the opinion what a defendant should do to make the case that his sentence is excessive relative to similarly situated defendants.

One option is to utilize the court’s reference to “national uniformity” and “any particular circuit.” Rather than limit references to Seventh Circuit cases, a defendant should select examples from other circuits as well. Of course, this will significantly increase the cost of legal research.

Attorneys should also pay close attention to when comparative sentences were imposed. If a defendant receives a sentence within a properly calculated guideline range, a comparative case decided pre-Booker is unlikely to be of much use.

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As a practical matter, because the Guidelines were mandatory, there should always be readily identifiable facts to justify the disparity in sentences, whether it be the defendant’s criminal record, or some aggravating fact reflected in the determination of the offense level, that will not be present in the comparison case.

Thus, only post-Booker cases are good candidates for providing examples of sentences that are indisputably more egregious, and yet resulted in a lower sentence.

Looking to appellate cases, as Newsom did, also has inherent drawbacks, even if one does a nationwide search for cases, rather than limiting the search to the Seventh Circuit. As a practical matter, because defendants appeal sentencing decisions far more often than the government, such a search is necessarily going to result in cases that, on the average, involve sentences longer than the norm, not shorter.

Accordingly, an argument based on disparity should not be confined to the Seventh Circuit, and should not be confined to appellate cases; the most useful comparative cases are likely to come from reported district court cases.

– David Ziemer

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David Ziemer can be reached by email.