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Disparity Case Analysis

It is important to note that, although a district court’s refusal to impose a sentence below the guidelines because of disparity between co-defendants is not grounds for reversal on appeal, it is possible that defendants can still contend in the trial court that it is unreasonable to give a higher sentence to a less culpable defendant.

The court stated that, under U.S. v. Meza, 127 F.3d 545 (7th Cir. 1997), district judges were forbidden to reduce a defendant’s sentence because of a discount properly given to another, but now, the rule of Meza has been transfigured from a rule into a standard.

This certainly suggests that a district court could impose a sentence below the guidelines to avoid disparity between the sentences of a defendant and his cooperating co-conspirators.

But the court suggests otherwise in the next paragraph: “A reason bad before Booker (e.g., alienage, race, sex) is bad today. One rule of law that preceded Booker, and retains vitality after it, is that a sentencing difference based on one culprit’s assistance to the prosecution is legally appropriate.”

Obviously, if a district court imposed a sentence outside of the guidelines because of a defendant’s race or sex, the sentence could not stand. Thus, the juxtaposition of these two sentences could be interpreted to mean that a defendant’s sentence set below the guidelines because of a co-defendant’s cooperation cannot stand either.

However, if this is what the court intended, the final phrase of the paragraph could have been written, “a sentencing difference based on one culprit’s assistance to the prosecution is legally required,” rather than “appropriate.”

Even if defense counsel prevails on this argument, however, he should still be prepared to find an answer to this question the court posed, “But why should one culprit receive a lower sentence than some otherwise-similar offender, just because the first is ‘lucky’ enough to have a confederate turn state’s evidence? Yet that is Boscarino’s position which has neither law nor logic commend it.”

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7th Circuit Court of Appeals

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Sentence does not indicate disparity

It is not uncommon, however, for conspirators to not start cooperating until after the indictment is filed, and, in the process, the identity and role of some minor player in the conspiracy is revealed. By the time that defendant is arrested, however, the prosecution does not need cooperation from him.

Such a scenario might not provide any answer to the court’s question, but it might provide a reason to rephrase it, by using a substitute for the expression, “just because the first is ‘lucky’ enough to have a confederate turn state’s evidence.”

Replacing the language with, “because the otherwise-similar offender could have cooperated, but refused to, while the first culprit had nothing to offer the government in exchange for a 5K1.1 motion,” creates a question that can be answered, without sounding illogical.

– David Ziemer

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David Ziemer can be reached by email.

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