10-1597 U.S. v. Scott

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Sentencing
Co-conspirators

A court cannot consider the fact that a co-conspirator was not convicted as a mitigating factor.
“[W]e reject the notion that a court may consider the coconspirator’s lack of conviction under § 3553(a) because holding otherwise would deprive prosecutors of the opportunity to exercise any meaningful prosecutorial discretion in coconspirator cases. Under our system of separation of powers, prosecutors retain broad discretion to enforce criminal laws because they are required to help the President ‘take Care that the Laws be faithfully executed.’ U.S. Const., Art. II, § 3; see United States v. Armstrong, 517 U.S. 456, 464 (1996). In order to ensure that prosecutorial discretion remains intact and firmly within the province of the Executive, judicial review over prosecutorial discretion is limited. See e.g., United States v. Woods, 576 F.3d 400, 409 (7th Cir. 2009) (explaining that ‘[t]here is nothing that this court either could or should do about the prosecutorial discretion that is exercised at the charging state’); United States v. Moore, 543 F.3d 891, 899-900 (7th Cir. 2008); In re United States, 503 F.3d 638, 641 (7th Cir. 2007); United States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007); Armstrong, 517 U.S. at 464; Rodriguez, 63 F.3d at 562 n.13.”

Affirmed.

10-1597 U.S. v. Scott

Appeal from the United States District Court for the Northern District of Illinois, Manning, J., Bauer, J.

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