Sentence does not indicate disparity

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The Seventh Circuit held on Feb. 8 that a guideline sentence can not be considered disparately high under 18 U.S.C. 3553(a)(6), even though a co-defendant who was more culpable received a lower sentence because of cooperation.

The City of Rosemont, Illinois, was insured through an agency called ABI/Acordia. Nick Boscarino helped the agency secure the business. Ralph Aulenta was one of the agency’s managers.

Every year that Rosemont placed its insurance through ABI/Acordia, Aulenta caused the agency to send a kickback to a corporation that Boscarino controlled.

Boscarino would then endorse the check to Aulenta, who would, in turn, return half of the amount in monthly payments to Boscarino over the coming year and keep the rest.

The scheme was discovered, after which Aulenta cooperated with prosecutors, testified against Boscarino, and ultimately received a sentence of 20 months.

Boscarino went to trial, and was convicted of mail fraud, money laundering, and tax crimes. He was sentenced to 36 months imprisonment, among other penalties — a sentence within the 33 to 41 month guideline.

Had Aulenta not pleaded guilty, his range would have been 41 to 51 months; the plea cut the range to 30 to 37; and the government’s 5K1.1 motion in exchange for testimony against Boscarino resulted in the sentence of 20 months.

Boscarino appealed, but the Seventh Circuit affirmed in a decision by Judge Frank H. Easterbrook, rejecting Boscari-no’s contention that his sentence is unreasonably high vis-à-vis the sentence of Aulenta.

Citing U.S. v. Vaughn, No 05-1518 (7th Cir. Jan. 6, 2006), the court first noted that it now has jurisdiction to consider the argument, whereas, it would have lacked such authority before U.S. v Booker, 543 U.S. 220 (2005), made the Guidelines advisory.

Although the court found that it has authority to consider whether the sentence is unreasonable, despite falling within the guidelines, the court concluded, “This is as far as Boscarino gets.”

The court noted that, prior to Booker, a district judge was forbidden to reduce one defendant’s sentence because of a discount properly given to another. U.S. v. Meza, 127 F.3d 545 (7th Cir. 1997).

Post-Booker, “The norms of sentencing are no longer so unyielding; Booker turns rules into standards, and the rule of Meza is one of those that have been transfigured (cites omitted).”

Nevertheless, the court held, “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.”

Providing public policy reasons to support the holding, the court wrote, “There would be considerably less cooperation — and thus more crime — if those who assist prosecutors could not receive lower sentences compared to those who fight to the last. Neither Booker nor sec. 3553(a)(6) removes the incentive for cooperation — and because this incentive takes the form of a lower sentence for a cooperator than for an otherwise-identical defendant who does not cooperate, the reduction cannot be illegitimate. After all, sec. 3553(a)(6) disallows ‘unwarranted sentence disparities’ (emphasis added by court), not all sentence differences.”

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Noting, “the kind of ‘disparity’ with which sec. 3553(a)(6) is concerned is an unjustified difference across judges (or districts) rather than among defendants to a single case,” the court found that adopting Boscarino’s position would actually increase disparity, system-wide.

The court found, “Instead of one low sentence, there will be two low sentences. 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 to commend it.”

The court concluded, “Sentencing disparities are at their ebb when the Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly. That was the main goal of the Sentencing Reform Act. The more out-of-range sentences that judges impose after Booker, the more disparity there will be. A senten
ce within a properly ascertained range therefore cannot be treated as unreasonable by reference to sec. 3553(a)(6).”

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David Ziemer can be reached by email.