For now, the courts decision in Martinez preserves the status quo district courts may grant downward departures to avoid nationwide discrepancy, or they may choose not to. Such departures are neither required, nor prohibited.
In Wisconsin, district courts have done both. One of the cases cited by Martinez as authority that a downward departure is justified came from the Eastern District of Wisconsin, U.S. v. Galvez-Barrios, 355 F.Supp.2d 958 (E.D.Wis.2005).
Should the issue be presented to the court, the precedent most on point, and containing some favorable language for both the government and defendant, is U.S. v. Boscarino, 437 F.3d 634 (7th Cir. 2006).
In Boscarino, the defendant argued that his sentence was unreasonably high compared to that of a co-conspirator who cooperated with the government. The court held, however, a sentencing difference is not a forbidden disparity if it is justified by legitimate considerations, such as rewards for cooperation (emphasis in original). Id., at 638.
Presumably, the court would show deference to Congress determination that overwhelmed court dockets in some districts is a legitimate consideration, and that could justify the disparity.
However, there is language in Boscarino that does support the interpretation in Galvez-Barrios: 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 absence of a fast-track procedure in one district is clearly a difference across districts that the Guidelines are supposed to avoid. The questions are whether that is an unjustified difference, and how much deference the court should give to Congress decision to deliberately create that difference.
The court in Boscarino also wrote: 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 states evidence? Yet that is Boscarinos position, which has neither law nor logic to commend it.
But, paraphrasing the quote to why should one culprit receive a lower sentence than some otherwise-similar offender, just because the first is lucky enough to have been arrested in Arizona instead of Wisconsin? the question ceases to be illogical.
Unfortunately for defendants, although the question is a logical one to ask, it has an answer: Congressional intent to relieve court dockets in the Southwest overburdened by illegal re-entry cases.
– David Ziemer
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David Ziemer can be reached by email.