Equal justice under law: Post-booker, should federal judges be able to depart from the federal sentencing guidelines to remedy disparity between codefendants' sentences?

Columbia Law Review

Volumn 109, Issue 3, 2009, Pages 538-570

  Reynolds, Ryan Scott ^a  

^a NONE

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EID: 65949104838     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (317)

1. Pub. L. No. 98-473, 98 Stat. 1987 (1984) (codified as amended in scattered sections of 18 and 28 U.S.C.).
2. See infra Part I.A.
3. 18 U.S.C. § 3553(a)(6) (2006).
4. See id. § 3553(b) (1) ("[T]he court shall impose a sentence of the kind, and within the range [set forth by the Guidelines] unless the court finds that there exists an aggravating or mitigating circumstance ⋯ not adequately taken into consideration by the Sentencing Commission ⋯."), invalidated by United States v. Booker, 543 U.S. 220, 245 (2005).
5. See infra Part II.A.
6. 543 U.S. 220.
7. See infra Part I.B.
8. See infra Parts II.B-C.
9. Circuits differ, however, regarding whether consideration of codefendant sentencing disparity is impermissible in all cases or only in specific types of cases. See infra notes 125-130 and accompanying text; Part II.C.
10. See infra Part III.B.
11. 128 S. Ct. 586, 598-600 (2007);
12. see also infra notes 166-171 and accompanying text.
13. See infra Part III.A.
14. See infra Part I.A.2.
15. See infra Part III.D.
16. See infra Part III.C.
17. See Christine De Maso, Note, Advisory Sentencing and the Federalization of Crime: Should Federal Sentencing Judges Consider the Disparity Between State and Federal Sentences Under Booker?, 106 Colum. L. Rev. 2095, 2099 (2006) (noting that, prior to the Guidelines, "judges had nearly absolute and unreviewable sentencing discretion");
18. see also Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion.").
19. See 337 U.S. 241, 247 (1949) ("[The sentencing judge's] task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined.").
20. See Daniel J. Freed, Federal Sentencing in the Wake of the Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L.J. 1681, 1688 (1992) (explaining that Supreme Court in Williams "conveyed the message that any authorized sentence, based on any available information, was likely to survive appeal");
21. Kate Stith & José A. Cabranes, Judging Under the Federal Sentencing Guidelines, 91 Nw. U. L. Rev. 1247, 1270 (1997) (noting that sentences were generally not reviewed by appellate courts under discretionary system).
22. See Fred Cohen, Sentencing, Probation, and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex. L. Rev. 1, 16 (1968) (arguing for limits on judicial discretion);
23. Becky Gregory & Traci Kenner, A New Era in Federal Sentencing, 68 Tex. B.J. 796, 798 (2005) (noting criticism of judicial discretion from both liberals and conservatives);
24. Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv. L. Rev. 904, 916 (1962) ("[T]he new penology has resulted in vesting in judges ⋯ the greatest degree of uncontrolled power over the liberty of human beings that one can find in the legal system."). Judge Marvin E. Frankel was the greatest critic of judges' unfettered sentencing discretion, and his book was the driving force behind the creation of the Federal Sentencing Guidelines.
25. See Marvin E. Frankel, Criminal Sentences: Law Without Order passim (1973) (arguing for guidelines system to restrain judicial sentencing discretion).
26. Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended in scattered sections of 18 and 28 U.S.C.);
27. see Adam Lamparello, Social Psychology, Legitimacy, and the Ethical Foundations of Judgment: Importing the Procedural Justice Model to Federal Sentencing Jurisprudence, 38 Colum. Hum. Rts. L. Rev. 115, 137 (2006) ("Congress enacted the SRA ⋯ to establish a cohesive sentencing structure that would both guide and constrain the exercise of judicial discretion during the sentencing process.");
28. see also Antoinette Marie Tease, Downward Departures for Substantial Assistance: A Proposal for Reducing Sentencing Disparities Among Codefendants, 53 Mont. L. Rev. 75, 76 (1992) (noting when SRA took effect and who was affected by it).
29. See 28 U.S.C. §§ 991, 994 (2006) (describing establishment, purposes, and duties of Sentencing Commission). Determinate sentencing systems had already been instituted to some degree on the state level.
30. See Michael C. Dorf & Jeffrey A. Fagan, Foreward, Problem-Solving Courts: From Innovation to Institutionalization, 40 Am. Crim. L. Rev. 1501, 1503 n. 13 (2003) (noting start of modern determinate sentencing era with changes in California, Washington, and Indiana).
31. See U.S. Sentencing Guidelines Manual § 1B1.1 (2008) [hereinafter Guidelines Manual] (providing instructions on how to calculate sentencing range);
32. see also Jacob Loshin, Beyond the Clash of Disparities: Cocaine Sentencing After Booker, 29 W. New Eng. L. Rev. 619, 623-24 (2007) ("This algorithmic approach to sentencing left little room for judicial discretion. Judges could choose within the narrow range computed from the Guidelines⋯.");
33. Tease, supra note 20, at 77 (describing method for calculating applicable sentencing range for defendant under Guidelines). By standardizing sentences for offenders, Congress hoped to reduce nationwide sentencing disparity.
34. See infra notes 26-27 and accompanying text.
35. See 18 U.S.C. § 3553(b)(1) (2006) ("[T]he court shall impose a sentence of the kind, and within the range [set forth by the Guidelines] ⋯ unless the court finds that there exists an aggravating or mitigating circumstance ⋯ not adequately taken into consideration by the Sentencing Commission⋯."), invalidated by United States v. Booker, 543 U.S. 220, 245 (2005).
36. See, e.g., United States v. Ives, 984 F.2d 649, 651 (5th Cir. 1993) (holding that considerable sentencing disparity with equally culpable codefendant was not valid basis for departure from Guidelines);
37. United States v. Gessa, 944 F.2d 265, 270 (6th Cir. 1991) ("[D]eparture solely for the sake of conformity among co-defendants is not authorized under the guidelines⋯.");
38. United States v. Wogan, 938 F.2d 1446, 1448 (1st Cir. 1991) ("[A] perceived need to equalize sentencing outcomes for similarly situated codefendants, without more, will not permit a departure from [the Guidelines].");
39. United States v. Joyner, 924 F.2d 454, 460 (2d Cir. 1991) (holding that consideration of codefendant sentencing disparity was impermissible ground for departure because Congress's primary concern was with nationwide disparity). But see United States v. Wright, 211 F.3d 233, 238-39 (5th Cir. 2000) (holding, in contradiction to Ives, that codefendant sentencing disparity could be basis for downward departure after Supreme Court's decision in Koon v. United States, 518 U.S. 81, 109 (1996), which held that departure factors should not be ruled out on a categorical basis).
40. See, e.g., United States v. Carr, 932 F.2d 67, 73 (1st Cir. 1991) ("[J]udicial dissatisfaction with the comparative outcome [of Guideline sentencing for codefendants] cannot justify a departure.");
41. Joyner, 924 F.2d at 460 ("We think the entire structure of the sentencing guideline system indicates that the Commission fully considered the resulting disparities that would result among co-defendants and was satisfied that the different ranges ⋯ were appropriate, rather than the 'unwarranted' disparities that Congress sought to eliminate.").
42. See 28 U.S.C. §§ 991 (b) (1) (B), 994(f) (stating Sentencing Commission's purpose of avoiding unwarranted sentencing disparities);
43. see also Tease, supra note 20, at 76-77 ("Congress aimed [through the SRA] to provide reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders.").
44. In practice, this ideal of nationwide uniformity has not been realized. See infra notes 199-200 and accompanying text. In large part, this is due to the variation in frequency of substantial assistance motions made by prosecutors from district to district.
45. See Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 Stan. L. Rev. 85, 114-15 (2005) (reviewing data on frequency of substantial assistance motions).
46. 18 U.S.C. § 3553(e).
47. Guidelines Manual, supra note 22, § 5K1.1.
48. See Freed, supra note 18, at 1710 (describing substantial assistance provisions as "major escape route" from rigid Guideline sentences);
49. Bruce M. Selya & John G. Massaro, The Illustrative Role of Substantial Assistance Departures in Combatting Ultra-Uniformity, 35 B.C. L. Rev. 799, 807 (1994) (characterizing section 5K1.1 as "king of the departure mountain").
50. Guidelines Manual, supra note 22, § 5K1.1;
51. see also Cynthia K.Y. Lee, From Gatekeeper to Concierge: Reigning in the Federal Prosecutor's Expanding Power over Substantial Assistance Departures, 50 Rutgers L. Rev. 199, 204-07 (1997) (describing substantial assistance departure and its main purposes).
52. See Freed, supra note 18, at 1710 ("5K1.1 authorizes a downward departure of unlimited magnitude by a court on motion of the Assistant United Stales Attorney.");
53. Lee, supra note 31, at 201 ("Unique to the substantial assistance departure is a government motion requirement").
54. See Lee, supra note 31, at 209 (providing example of case where more culpable defendant received lighter sentence);
55. Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199, 213 (1993) (explaining how "mandatory system can become an inverted pyramid" whereby minor participants receive harsher sentences than more culpable codefendants);
56. Jeffrey J. Shebesta, Note, The "Safety Valve" Provision: Should the Government Get an Automatic Shut-Off Valve?, 2002 U. I11. L. Rev. 529, 534-35 (describing inverted sentencing phenomenon).
57. But see Frank O. Bowman, III, Departing Is Such Sweet Sorrow: A Year of Judicial Revolt on "Substantial Assistance" Departures Follows a Decade of Prosecutorial Indiscipline, 29 Stetson L. Rev. 7, 48-53 (1999) (arguing that inverted sentencing is most likely an uncommon occurrence).
58. See Lee, supra note 31, at 237 ("[P]rosecutorial decision making regarding substantial assistance is largely invisible, internal, and not subject to scrutiny by outsiders.");
59. see also infra note 45 and accompanying text.
60. See infra notes 50-55 and accompanying text.
61. See Freed, supra note 18, at 1705 (noting "serious imbalances" in drug cases);
62. Tease, supra note 20, at 88-90 (decrying system where more culpable codefendants are rewarded for greater involvement in crime compared to their less involved cohorts).
63. Pub. L. No. 103-322, 108 Stat. 1796, 1985-86 (1994) (codified at 18 U.S.C. § 3553(f) (2006)).
64. The following are the required qualifications: (1) defendant has no more than one criminal history point; (2) defendant did not use violence, make threats, or possess a weapon; (3) offense did not result in death or serious injury; (4) defendant was not a supervisor of others in the offense, nor engaged in a criminal enterprise; and (5) defendant has provided all known information concerning the offense. 18 U.S.C. §3553(1).
65. Id.
66. See Molly N. Van Etten, Note, The Difference Between Truth and Truthfulness: Objective Versus Subjective Standards in Applying Rule 5C1.2, 56 Vand. L. Rev. 1265, 1277 (2003) (discussing application of safety valve provision).
67. Gerard E. Lynch, Sentencing Eddie, 91 J. Crim. L. & Criminology 547, 563 (2001);
68. see also Shebesta, supra note 33, at 535 (noting safety valve provision is applicable only to "narrow class of defendants");
69. id. at 556 (criticizing fact that "for some defendants, the safety valve has had no impact").
70. See Freed, supra note 18, at 1696 ("[M]ore often than before the guidelines, the prosecutor shares and often overshadows the judge's function.");
71. Paul J. Hofer et al., The Effect of the Federal Sentencing Guidelines on Inter-Judge Sentencing Disparity, 90 J. Crim. L. & Criminology 239, 300 (1999) ("[T]he last ten years have witnessed the creation of new tools by which prosecutors can control sentencing.").
72. See supra note 23 and accompanying text.
73. See De Maso, supra note 16, at 2100, 2118 (noting that prosecutors' decisions were what determined defendants' ultimate sentences).
74. See Lee, supra note 31, at 251 (describing prosecutors' discretion whether to file substantial assistance motion as "virtually unreviewable"). Whether, post-Booker, a judge still has to wait for the prosecution to make a motion before she can depart based on substantial assistance is a subject that has begun to be explored.
75. See I. India Geronimo, Comment, "Reasonably Predictable": The Reluctance to Embrace Judicial Discretion for Substantial Assistance Departures, 33 Fordham Urb. LJ. 1321, 1331-33 (2006) (noting judges' use of § 3553 (a) to depart downward even in the absence of substantial assistance motion by government). This Note argues that under §3553(a)(6) the government should not have to make a substantial assistance motion before a judge can depart from the Guidelines in multidefendant cases.
76. See infra notes 193-196 and accompanying text (discussing benefits of allowing judges to consider disparity between codefendants' sentences).
77. See supra notes 37-40 and accompanying text.
78. See supra note 41 and accompanying text.
79. See infra Part I.A.5.
80. See Ronald F. Wright, Prosecutorial Guidelines and the New Terrain in New Jersey, 109 Penn St. L. Rev. 1087, 1088-90 (2005) (arguing that unique prosecutorial guidelines system in New Jersey could serve as model for all fifty states).
81. See, e.g., Freed, supra note 18, at 1712 (explaining how some district judges believed that by giving prosecutors power over substantial assistance departures, Congress had "invited the very disparity that the SRA had sought to eliminate");
82. Lee, supra note 31, at 236 (discussing how some prosecutors have used substantial assistance motions to manipulate the Guidelines, thereby undermining Congress's goal of sentencing uniformity for similarly situated defendants). The Supreme Court in Booker was apparently also concerned with expanding the power of the government to dictate sentences. See United States v. Booker, 543 U.S. 220, 256-57 (2005) (refusing to adopt dissent's remedy because it would allow prosecutors to control sentencing range through charging decisions). But cf. Lee, supra note 31, at 235 (discussing how government motion requirement for substantial assistance departures provides a check on judge's ability to depart from Guidelines range).
83. See, e.g., United States v. Robertson, 15 F.3d 862, 876 (9th Cir. 1994) (Reinhardt, J., concurring) (labeling prosecutor's discretion "generally unreviewable"), rev'd on other grounds, 514 U.S. 669 (1995);
84. Lee, supra note 31, at 251 (arguing that prosecutors' "virtually unreviewable discretion" can lead to sentencing disparity).
85. See Alschuler, supra note 27, at 105 (criticizing fact that prosecutors sought departures less often for blacks and Latinos than white defendants). Fear of disparate treatment by prosecutors in a determinate sentencing system is not a recent concern.
86. See Ilene H. Nagel & Stephen J. Schulhofer, A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices Under the Federal Sentencing Guidelines, 66 S. Cal. L. Rev. 501, 560 (1992) ("[U]nfettered prosecutorial discretion⋯ may reproduce unwarranted disparity or, worse, discrimination based on race, gender, and social class ⋯.").
87. See supra note 33 and accompanying text.
88. See Freed, supra note 18, at 1712 (noting percentage of substantial assistance departures ranged from zero in some districts to over twenty percent in others).
89. See Alschuler, supra note 27, at 102 ("[S]ome reduction in judge-produced disparity was more than offset by an increase in prosecutor-produced disparity.").
90. 477 U.S. 79, 86, 91 (1986).
91. Id. at 85-86.
92. Id. at 85 (emphasis omitted) (quoting Patterson v. New York, 432 U.S. 197, 210 (1977)).
93. Id. at 92-93. This type of sentencing is commonly known as "real offense" sentencing; it allows judges to base defendants' sentence on the real conduct underlying the offense even though this conduct is not captured in the charges brought against the defendant.
94. See David Yellen, Illusion, Illogic, and Injustice: Real-Offense Sentencing and the Federal Sentencing Guidelines, 78 Minn. L. Rev. 403, 408 (1993) ("[A] 'real-offense element' is any sentencing factor not included in the definition of the offense of conviction⋯."). Its use under the Guidelines as a way to increase defendants' sentences has received substantial criticism.
95. See infra note 148 and accompanying text.
96. See McMillan, 477 U.S. at 86 (noting "there are constitutional limits to the State's power" to define what constitutes elements of crime and what constitutes sentencing factors).
97. 530 U.S. 466 (2000).
98. Id. at 468-69.
99. Id. at 490;
100. see also Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) (holding similarly in interpretation of federal statute).
101. See infra Part I.B.2 (describing transition from mandatory to advisory Guidelines).
102. 542 U.S. 296 (2004).
103. Id. at 299-300.
104. See id. at 303-04 (discussing what constitutes a maximum sentence for Apprendi purposes in a guidelines system).
105. Id. at 299.
106. Id. at 303-04.
107. Id. at 303 (emphasis omitted).
108. 543 U.S. 220 (2005).
109. Id. at 227.
110. Id.
111. Id. at 244.
112. See id. at 245.
113. See id.
114. Id. ("We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory ⋯ incompatible with today's constitutional holding."). Excising § 3553(b)(1) was not the only remedy open to the Court. In his partial dissent, Justice Stevens advocated grafting a Sixth Amendment requirement onto the Guidelines.
115. Id. at 302 (Stevens, J., dissenting in part) ("Merely requiring all applications of the Guidelines to comply with the Sixth Amendment ⋯ would have required no more complicated procedures than the procedural regime the majority enacts today⋯."). The majority of the Court disagreed.
116. See id. at 252 (majority opinion) ("To engraft the Court's constitutional requirement onto the sentencing statutes, however, would destroy the system.").
117. Id. at 245.
118. Blakely v. Washington, 542 U.S. 296, 303-04 (2004).
119. See Booker, 543 U.S. at 259-60, 264 (requiring judges to take Guidelines into account, but without discussing how much deference must be given);
120. see also id. at 311 (Scalia, J., dissenting in part) ("The worst feature of the scheme is that no one knows - and perhaps no one is meant to know - how advisory Guidelines ⋯ will function in practice.").
121. Id. at 260 (majority opinion).
122. Id. at 261.
123. Id.;
124. see also Frank O. Bowman, III, Beyond Band-Aids: A Proposal for Reconfiguring Federal Sentencing After Booker, U. Chi. Legal F., 2005, at 149, 182 (discussing Justice Breyer's remedy regarding reasonableness review and questions it left unanswered).
125. 18 U.S.C. § 3553(a)(6) (2006).
126. 128 S. Ct. 586 (2007).
127. 128 S. Ct. 558 (2007).
128. See supra notes 77-78 and accompanying text.
129. While trial judges must still calculate the appropriate Guidelines range for a defendant, they can then choose to depart from the Guidelines based on consideration of the factors in 18 U.S.C. § 3553(a). See Gall, 128 S. Ct. at 596-97.
130. See Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 Am. U. L. Rev. 747, 764-65 (2005) ("Every federal circuit has ruled that disparity is neither a basis for dismissal nor a basis for challenge to a sentence that exceeds the sentences imposed on co-defendants⋯.").
131. 18 U.S.C. § 3553(a)(6).
132. See, e.g., United States v. Carr, 932 F.2d 67, 73 (1st Cir. 1991) (holding "judicial dissatisfaction" with codefendant sentencing disparity cannot justify departure);
133. United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991) ("[N]either Congress nor the Commission could have expected that the mere fact of a difference between the applicable guidelines range for a defendant and that of his co-defendant would permit a departure⋯.");
134. United States v. Enriquez-Munoz, 906 F.2d 1356, 1360 (9th Cir. 1990) ("[A]n upward departure for purposes of equalization is not permissible."). However, some circuits made very limited rules that allowed trial judges to consider the disparity in unusual circumstances. See United States v. Meza, 127 F.3d 545, 549 (7th Cir. 1997) (allowing consideration of codefendant disparity created by improper application of Guidelines);
135. United States v. Ray, 930 F.2d 1368, 1372 & n. 7 (9th Cir. 1991) (allowing consideration of disparity in "unique situation" where one defendant was sentenced under Guidelines and codefendants were sentenced while Guidelines were temporarily suspended in Ninth Circuit).
136. See, e.g., Carr, 932 F.2d at 73 (asserting that codefendant disparity was not unwarranted within meaning of statute);
137. Joyner, 924 F.2d at 460 ("We think the entire structure of the sentencing guideline system indicates that the Commission fully considered the resulting disparities that would result among co-defendants and was satisfied that the different ranges ⋯ were appropriate, rather than the 'unwarranted' disparities that Congress sought to eliminate.").
138. Joyner, 924 F.2d at 461.
139. Id.
140. Admittedly, the court required a judge to find "in good faith" the criteria that would decrease the disparity, but provided the trial record gave some indication that such criteria were present, an appellate court would presumably find that the judge had acted in good faith - even if the judge's reason for departure was actually based on consideration of codefendant disparity. Cf. James A. McLaughlin, Case Note, Reducing Unjustified Sentencing Disparity, 107 Yale L.J. 2345, 2350 (1998) (noting increased "judicial circumvention" of Guidelines and arguing for departure to address codefendant disparity to reduce temptation to manipulate Guidelines).
141. Enriquez-Munoz, 906 F.2d at 1358. Interestingly, in this case, the government argued for equalization of codefendant sentences when doing so would increase the defendant's sentence while arguing against equalization in Joyner - a downward departure case. Although these two cases occurred in different circuits, prosecutors in any circuit might feel differently about equalization when the defendant faces an upward, rather than downward, departure.
142. Id. ("The government argues that equal sentences for the defendants are appropriate since they engaged in similar conduct."). However, the SRA advises judges to consider "the need to avoid unwarranted sentence disparities among defendants" who have been convicted of similar conduct and have similar records. 18 U.S.C. § 3553(a)(6) (2006). Thus, neither the SRA nor this Note would suggest that all codefendants convicted of the same crime should receive the same sentence.
143. Enriquez-Munoz, 906 F.2d at 1359.
144. See United States v. Ray, 930 F.2d 1368, 1372 (9th Cir. 1991) ("This restraint on judicial discretion has caused district judges nationwide to regard the [G]uidelines with less than wholehearted enthusiasm.");
145. McLaughlin, supra note 95, at 2350 (arguing "systemic benefits are lost" when judges cannot consider codefendant disparities);
146. Tease, supra note 20, at 83-84, 89 (noting judges' inability to consider disparity and arguing for revision of Guidelines). Some of this criticism may have led to the creation of the safety valve provision discussed above.
147. See supra Part I.A.3.
148. See Tease, supra note 20, at 86-87 (providing two cases as examples where minor participants in a crime were treated more harshly than their more culpable codefendants). While the safety valve amendment may have remedied some of these unfair outcomes, its scope remains limited.
149. See supra note 41 and accompanying text.
150. See supra notes 24-25 and accompanying text.
151. 18 U.S.C. § 3553(a)(6).
152. See, e.g., United States v. Clark, 289 F. App'x 44, 53 (5th Cir. 2008) (per curiam) ("18 U.S.C. § 3553(a)(6) bars only unwarranted sentencing disparities among similarly-situated co-defendants.");
153. United States v. Smart, 518 F.3d 800, 804 (10th Cir. 2008) ("After Gall, it is clear that codefendant disparity is not a per se 'improper' factor⋯.");
154. United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008) ("[T]he district judge could but was not required to consider disparities between codefendants." (emphasis added));
155. United States v. Neufeld, 223 F. App'x 887, 890 (11th Cir. 2007) (per curiam) (holding departure based on codefendant disparity was not unreasonable);
156. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006) (holding that while § 3553(a) does not require judges to consider codefendant disparity, neither does it prohibit them from doing so);
157. United States v. Lazenby, 439 F.3d 928, 934 (8th Cir. 2006) (concluding that district court should have given more weight to extreme disparity between codefendants' sentences since such disparity fails to serve legislative intent of § 3553 (a) (6)).
158. See infra Part II.C.
159. See infra notes 125-129 and accompanying text.
160. 223 F. App'x at 889 ("Our sister circuits have split on whether section 3553(a) (6) permits consideration of sentence disparity among codefendants.").
161. See id.
162. Id. at 890. The court seemed to rely on the fact that the government failed to make an objection at trial regarding the district court's consideration of codefendant disparity, and thus the defendant's sentence could only be reversed if the district court had committed plain error. Whether the court of appeals would have upheld the defendant's reduction in sentence if the government had made an objection is uncertain. Regardless, for future cases, there now exists what did not before - a "post-Booker binding precedent of [the Eleventh] Circuit [that] addresses squarely this issue."
163. Id. at 889.
164. Id. at 889 (internal quotation marks omitted).
165. See United States v. Krutsinger, 449 F.3d 827, 830 (8th Cir. 2006) (holding district court had not improperly applied § 3553 (a) (6) or abused its discretion when it compared sentences between similarly situated defendants who had committed same crime);
166. United States v. Lazenby, 439 F.3d 928, 934 (8th Cir. 2006) (concluding that district court should have given more weight to extreme disparity between codefendants' sentences since such disparity fails to serve legislative intent of § 3553(a)(6)).
167. 449 F.3d at 827.
168. For a discussion of prosecutorial power over sentencing, see supra Parts I.A.2, I.A.4.
169. Krutsinger, 449 F.3d at 828.
170. Id. at 828-29.
171. Id. at 829.
172. Id. at 828-29.
173. Id. Arguably, a prosecutor should be able to recommend differing levels of departure based on differing levels of cooperation. However, in reference to Mr. Krutsinger, the court of appeals made the following statement: "We cannot say the district court abused its discretion in granting a similar departure to a co-defendant who provided as much or more cooperation."
174. Id. at 830. This language lends support to the notion that both prosecutors and judges should determine the extent to which defendants are cooperating. If a prosecutor arbitrarily gives a defendant a greater departure recommendation when his codefendant has provided as much cooperation, then the trial judge should be able to take a second look and provide equal departures. Before Booker, however, this type of judicial intervention was prohibited under the SRA. See supra note 45 and accompanying text. Giving judges some power over substantial assistance departures also mitigates some of the negative effects seen when prosecutors have complete control.
175. See supra notes 50-55 and accompanying text.
176. Krutsinger, 449 F.3d at 829.
177. Id. at 830.
178. Id. at 829-30. The government apparently did not claim that O'Meara and Quam were different in terms of their criminal conduct or criminal history.
179. See id. Rather, the government recommended a higher sentence for O'Meara simply because she was convicted at a later date, at which time the government was able to attribute a greater amount of methamphetamine to the conspiracy.
180. Id.
181. See supra note 117.
182. See 18 U.S.C. § 3553(a)(6) (2006) (advising judges to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct");
183. United States v. Booker, 543 U.S. 220, 253-54 (2005) (noting congressional intent to create increased sentencing uniformity based on defendants' real conduct rather than specific crimes chosen by prosecutors).
184. See supra note 120.
185. Quam's lower sentence may have been justified had he pled guilty while O'Meara insisted on going to trial. However, this was actually opposite to how it really happened - O'Meara pled guilty and Quam went to trial. See Krutsinger, 449 F.3d at 830. As the court noted, this "is a difference that would indicate O'Meara should receive a lower, not a higher, sentence."
186. Id.
187. 480 F.3d 856, 859 (8th Cir. 2007). Presumably this rule would not have affected the judge's ability to remedy disparity in Krutsinger since both defendants received substantial assistance motions. However there may be similar cases where both defendants are willing to cooperate, but the prosecutor only files a motion for one defendant, creating a disparity that the judge deems unwarranted based on the circumstances of the case. The rule established in the Eighth Circuit forbids the trial judge from remedying codefendant disparity in these cases.
188. See United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008) ("[D]isparity in sentences between a defendant who provided substantial assistance and one who provided no assistance ⋯ is not unwarranted." (quoting Gallegos, 480 F.3d at 859)).
189. See supra Part I.A.2 (discussing disparity caused by prosecutorial control over substantial assistance motions).
190. See supra Part I.A.5 (identifying problems associated with prosecutorial sentencing power).
191. See supra notes 33, 36 and accompanying text; infra note 194 and accompanying text.
192. Arguably, a defendant who cooperated with the government should receive a lower sentence than his codefendant who obstinately refused to cooperate. This Note does not advocate a system where noncooperation is always rewarded as much as cooperation. However, in cases where one defendant was willing to cooperate, or even did provide some cooperation, but the government only filed a substantial assistance motion for his codefendant, the judge should have the discretion to depart from the Guidelines to remedy this disparity. This is especially true if the codefendant received a 5K1 recommendation because he was more deeply involved in the crime and therefore had more information to provide to the government - treating the minor participant more harshly would punish him for being less culpable than his codefendant. See supra note 33 and accompanying text. In addition, judges would have the discretion to depart in cases where the judge believes that the government made a substantial assistance motion for one defendant while refusing to make a motion for a codefendant based on impermissible reasons, such as race or gender.
193. See supra note 52 (discussing discrimination in prosecutorial decisionmaking).
194. See United States v. Omole, 523 F.3d 691, 700 (7th Cir. 2008) ("This court refuses to view the discrepancy between sentences of codefendants as a basis for challenging a sentence.");
195. United States v. Pisman, 443 F.3d 912, 916 (7th Cir. 2006) ("[C]omparison of co-defendants ⋯ is not a proper application of the § 3553 (a) mandate that a court minimize unwarranted disparities in sentences."). Until recently, the Tenth Circuit agreed that codefendant disparity was not grounds for challenging a sentence; certiorari was denied when one defendant tried to appeal the Tenth Circuit's decision to the Supreme Court in 2008.
196. See United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006) ("[A] criminal defendant alleging a disparity between his sentence and that of a codefendant is not entitled to relief from a sentence that is properly within the sentencing guidelines and statutory requirements."), cert, denied, 128 S. Ct. 2523 (2008). However, after the Supreme Court's decision in Gall v. United States, 128 S. Ct. 586 (2007), which held that sentences must be reviewed "under a deferential abuse of discretion standard,"
197. id. at 591, the Tenth Circuit has aligned its thinking with the majority of circuits.
198. See infra notes 182-183 and accompanying text.
199. Pisman, 443 F.3d at 916 (holding that § 3553(a) does not apply to codefendant sentencing disparity).
200. Id.
201. Id. at 915. Although Pisman was a case where the disparity was caused by only one defendant receiving a substantial assistance motion, the Seventh Circuit has shown in numerous cases that it believes consideration of codefendant disparity is impermissible under § 3553(a)(6) in all cases, not just cases involving cooperation. See, e.g., Omole, 523 F.3d at 700 (holding that a sentence may be disturbed only if codefendant disparity creates a disparity between defendant's sentence and all other sentences for similar offenders imposed nationwide);
202. United States v. McMutuary, 217 F.3d 477, 490 (7th Cir. 2000) ("[T]he sentencing court should consider unjustified disparities in only those cases where the unjustified disparity between co-defendants actually creates a disparity between the length of the appellant's sentence and all other similar sentences imposed nationwide."). In McMutuary, the Seventh Circuit recognized, in dicta, one possible exception: Codefendant disparity might be a permissible factor for departure in those cases where the prosecutor abused his discretion, id., a tough standard to meet considering the wide latitude and unreviewability of prosecutorial decisions.
203. See supra note 51 and accompanying text.
204. Pisman, 443 F.3d at 916.
205. Id.
206. See supra notes 94-95 and accompanying text.
207. See Michael M. O'Hear, The Duty to Avoid Disparity: Implementing 18 U.S.C. § 3553(a)(6) After Booker, 37 McGeorge L. Rev. 627, 645 (2006).
208. Id. at 646.
209. See supra notes 112-120 and accompanying text. To impose the sentences recommended by the government in Krutsinger would result in arbitrary sentencing whereby similarly situated defendants receive very different sentences.
210. See supra Part I.B for a discussion regarding the history leading up to, and the two main holdings of, United States v. Booker, 543 U.S. 220 (2005).
211. See, e.g., Sandra D. Jordan, Have We Come Full Circle? Judicial Sentencing Discretion Revived in Booker and Fanfan, 33 Pepp. L. Rev. 615, 645 (2006) (arguing that Booker will make courts reevaluate notions about sentencing that have taken hold over past two decades, possibly making those notions obsolete). But see Norman C. Bay, Prosecutorial Discretion in the Post-Booker World, 37 McGeorge L. Rev. 549, 568-69 (2006) (arguing that dramatic change in sentencing procedures is unlikely as judges are used to sentencing under Guidelines and will take time to adjust). Finally, some commentators asserted that Booker established an "ideal middle ground" that returned some aspects of sentencing to the pre-Guidelines era, but ultimately kept sentencing within Guidelines ranges for the majority of cases.
212. See, e.g., Robert J. Anello & Jodi Misher Peikin, Evolving Roles in Federal Sentencing: The Post-Booker/Fanfan World, 1 Fed. Cts. L. Rev. 301, 327 (2006).
213. See Regina Stone-Harris, How to Vary from the Federal Sentencing Guidelines Without Being Reversed, 19 Fed. Sent'g Rep. 183, 183 (2007) (characterizing decision in Booker as "radical change" in way Guidelines are now to be used);
214. De Maso, supra note 16, at 2108 ("For Booker's constitutional remedy to work, the advisory regime must differ from the mandatory one.").
215. The Supreme Court has discussed codefendant disparity in a post-Booker decision, however. See infra notes 172-178 and accompanying text.
216. Booker, 543 U.S. at 260. For the complete statutory language, see 18 U.S.C. §3553(a)(6) (2006) (directing judges to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" when sentencing).
217. See O'Hear, supra note 138, at 628 ("[W]ith conversion of the Guidelines from mandatory to advisory, the (a) (6) duty to avoid unwarranted disparity may acquire new significance.").
218. Booker, 543 U.S. at 250.
219. See, e.g., id. at 288 (Stevens, J., dissenting in part) ("[T]he goal of such sentencing - increasing a defendant's sentence on the basis of conduct not proved at trial - is contrary to the very core of Apprendi.");
220. H.R. Rep. No. 98-1017, at 98 (1984) ("To permit 'real offense' sentencing guidelines would present serious constitutional problems as well as substantial policy difficulties.");
221. David Yellen, Reforming the Federal Sentencing Guidelines' Misguided Approach to Real-Offense Sentencing, 58 Stan. L. Rev. 267, 275 (2005) (labeling Guidelines approach to real offense sentencing as "one of [its] most unseemly aspects");
222. Robert L. Boone, Comment, Booker Defined: Examining the Application of United Stales v. Booker in the Nation's Most Divergent Circuit Courts, 95 Cal. L. Rev. 1079, 1085 (2007) (describing real offense sentencing as "[p]erhaps the most controversial feature of the Guidelines").
223. Booker, 543 U.S. at 251 (majority opinion).
224. For an illustration, see supra notes 112-124 and accompanying text.
225. See Carol P. Getty, Twenty Years of Federal Criminal Sentencing, 7J. Inst. Just. & Int'l Stud. 117, 122 (2007) (describing real offense sentencing as way for prosecutors and judges to add years to defendant's sentence based on facts not presented to jury);
226. supra note 148.
227. Booker, 543 U.S. at 264. Justice Breyer also held, however, that district court judges must still take the Guidelines into account when sentencing a defendant.
228. Id. However, Booker does not clarify what it means to "take [the Guidelines] into account," or whether a judge can consider the range suggested by the Guidelines, but then depart from it simply because she disagrees with the sentence.
229. Id.
230. See supra note 23 and accompanying text (discussing restriction on granting departures pre-Booker).
231. Gall v. United States, 128 S. Ct. 586, 597 (2007).
232. Kimbrough v. United States, 128 S. Ct. 558, 574 (2007).
233. As discussed above, Booker changed the standard of review for Guidelines departures from de novo to a more deferential reasonableness standard. See Part I.B.3. Gall clarified exactly how much deference is due.
234. See Gall, 128 S. Ct. at 591.
235. Gall, 128 S. Ct. at 592-93. The district court judge based the more lenient sentence on a number of factors under § 3553(a), including the defendant's voluntary withdrawal from the drug distribution conspiracy, his exemplary conduct after the withdrawal, the existence of a support network, his lack of a criminal history, and his young age.
236. Id. at 593.
237. Id. at 594.
238. Id. at 591;
239. see also Linda Greenhouse, Court Restores Sentencing Powers of Federal Judges, N.Y. Times, Dec. 11, 2007, at A1 (declaring decision made it "clear that an appeals court must have a very good reason of its own to displace the trial judge's judgment").
240. See Gall, 128 S. Ct. at 594 (holding district court judge must still provide sufficient explanation for any unusual departure from Guidelines range). The Court seemed to partly base its conclusion that judges must still provide justification for departures on the fact that the Guidelines were to some degree the product of "extensive empirical evidence derived from the review of thousands of individual sentencing decisions."
241. Id.;
242. see also Rita v. United States, 127 S. Ct. 2456, 2464 (2007) ("The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences ⋯."). However, as the Court pointed out, "not all of the Guidelines are tied to this empirical evidence." Gall, 128 S. Ct. at 594 n. 2.
243. See Gall, 128 S. Ct. at 597 ("[The district judge] must make an individualized assessment based on the facts presented.");
244. Rita, 127 S. Ct. at 2469 ("The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.");
245. cf. Freed, supra note 18, at 1728-30 (arguing pre-Booker that appellate judges are too removed from case and district judges are better suited to approach sentencing with view of all relevant information).
246. Gall, 128 S. Ct. at 596.
247. Id. at 597.
248. See id. ("The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.").
249. United States v. Gall, 446 F.3d 884, 890 (8th Cir. 2006) ("[T]he record does not show that the district court considered whether a sentence of probation would result in unwarranted sentencing disparities."), rev'd, 128 S. Ct. 586. Interestingly, Gall's case came up from the Eighth Circuit, one of the circuits that have held that codefendant disparity is a permissible consideration under §3553 (a)(6). See supra notes 110-124. Like the Eighth Circuit, the Supreme Court seemed to agree that considering unwarranted sentencing disparity between codefendants is important, but disagreed in this instance that the trial judge failed to do so. Gall, 128 S. Ct. at 599-600.
250. Gall, 128 S. Ct. at 599-600.
251. Id.
252. Id. at 600.
253. Id. at 598.
254. 18 U.S.C. § 3553(a)(6) (2006). This is not to say that the Supreme Court has ruled on this issue. First, Gall's sentence was not imposed in order to equalize his sentence with that of his codefendants, nor vice versa. Second, even if Gall's sentence had been the same as that of his codefendants, it would have been within the Guidelines range. The issue addressed by this Note, and the question which has split the circuits, is whether a district court judge can depart from the Guidelines after consideration of codefendant sentencing disparity. Still, it is telling that the Supreme Court implied that consideration of codefendant disparity is permissible under § 3553(a) (6). The Court could have simply avoided the discussion entirely by stating that § 3553(a) (6) does not refer to defendants in the same case, but rather to similarly situated defendants nationwide. Cf. supra notes 131-137 and accompanying text (discussing Seventh Circuit's interpretation of §3553(a)(6)).
255. 128 S. Ct. 558 (2007).
256. Id. at 564 (explaining that crack cocaine dealer is subject to same sentence as dealer trafficking in 100 times more powder cocaine);
257. see also 21 U.S.C. § 841 (b) (2006) (describing penalties for crack and powder cocaine).
258. Kimbrough, 128 S. Ct. at 564.
259. Id. at 574 ("The sentencing judge ⋯ has 'greater familiarity with ⋯ the individual case and the individual defendant before him than the Commission or the appeals court.' He is therefore 'in a superior position to find facts and judge their import under § 3553(a)' in each particular case." (quoting Rita v. United States, 127 S. Ct. 2456, 2469 (2007), and Gall, 128 S. Ct. at 597)).
260. Of course, these issues refer to two different types of sentencing disparities. However, both disparities are created by following the Guidelines, and both have created disagreement among circuits as to whether their consideration warrants departure from the Guidelines.
261. See id. at 566 n. 4 (describing appellate courts' division over whether consideration of crack/powder disparity was permissible);
262. supra Parts II.B, II.C (explaining appellate courts' division over whether consideration of codefendant disparity is permissible). In addition, some of the same concerns raised by codefendant sentencing disparity also seemed to push the Supreme Court toward its decision in Kimbrough. Compare Kimbrough, 128 S. Ct. at 568 (noting that 100-to-1 ratio can "lead to the 'anomalous' result" that retail dealers receive longer sentences than more culpable wholesale dealers), with Adriano Hrvatin, Comment, Unconstitutional Exploitation of Delegated Authority: How to Deter Prosecutors from Using "Substantial Assistance" to Defeat the Intent of Federal Sentencing Laws, 32 Golden Gate U. L. Rev. 117, 153-58 (2002) (discussing how less culpable defendants may receive greater sentences than more culpable coconspirators under Guidelines). Inverted sentencing is discussed in greater detail above.
263. See supra notes 28-33 and accompanying text.
264. See supra notes 157-171 and accompanying text.
265. See Greenhouse, supra note 160 ("In [Gall and Kimbrough], the court said federal district judges have broad discretion to impose what they think are reasonable sentences, even if federal guidelines call for different sentences.").
266. Supra note 103 and accompanying text.
267. See supra notes 125-126, 131 and accompanying text.
268. See supra Part II.C.
269. See United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006) (stating defendant's sentencing disparity claim lacked merit and citing pre-Booker case that held Guideline's purpose was "not to eliminate disparity between co-defendants" (quoting United States v. Gallegos, 129 F.3d 1140, 1143 (10th Cir. 1997))), cert. denied, 128 S. Ct. 2523 (2008).
270. 518 F.3d 800, 804 (10th Cir. 2008).
271. See United States v. Omole, 523 F.3d 691, 700 (7th Cir. 2008) ("This court refuses to view the discrepancy between sentences of codefendants as a basis for challenging a sentence.").
272. See supra Parts I.A.2, I.A.4.
273. See supra Part I.A.5.
274. See supra notes 26, 121-124 and accompanying text;
275. see also McLaughlin, supra note 95, at 2349 (noting that multidefendant cases give judges a "concrete frame of reference from which to evaluate the culpability of each defendant").
276. See Freed, supra note 18, at 1690 ("The [Guidelines] are more complex, inflexible, and severe than those devised by any other jurisdiction." (footnotes omitted));
277. McLaughlin, supra note 95, at 2350 (describing Guidelines as "mechanical computation of offense levels" and judge's individual assessment as "rational consideration of each codefendant's culpability").
278. But see Lynch, supra note 41, at 562-63 (arguing that, compared to absolutely rigid mandatory minimum statutes, Guidelines seem "masterpieces of subtlety, nuance, and thoughtfulness").
279. See O'Hear, supra note 138, at 639 (arguing that § 3553(a) (6) was "not intended to promote a rigidly mechanical application of the Guidelines; judges were expected to impose truly individualized sentences in each case");
280. supra note 162 and accompanying text.
281. See supra notes 94-95 and accompanying text.
282. See supra notes 94-95 and accompanying text.
283. Cf. Freed, supra note 18, at 1711-12 ("One major difficulty with vesting exclusive power in the prosecutor to decide whether defendants are eligible or ineligible for downward departures is that there are no visible standards to guide the prosecutor's exercise of discretion.");
284. Lee, supra note 31, at 237-39 (contrasting transparency of judicial decisions with unreviewable nature of prosecutorial decisions). A lack of transparency can in fact cause the precise problems the Guidelines were meant to remedy.
285. See id. at 251 ("Virtually unreviewable discretion is problematic because it may reproduce the unwarranted sentencing disparity that the Guidelines seek to correct.").
286. See supra Part I.A.5.
287. See Shebesta, supra note 33, at 556 (noting how safety valve provision has not impacted some defendants who should have received relief);
288. supra note 41 and accompanying text; cf. Lee, supra note 31, at 215-16 (noting how absence of government motion requirement in safety valve provision was signal by Congress that judges should have some discretion to decide whether defendant has cooperated and thus deserves departure).
289. See supra note 52 and accompanying text.
290. See supra text accompanying notes 125-129.
291. See United States v. Pisman, 443 F.3d 912, 916 (7th Cir. 2006) ("[T]he focus on the differences among defendants in an individual case in which one defendant cooperates could actually increase sentence disparity, because the resulting lower sentence for the offense to redress that disparity will be out of sync with sentences in similar cases nationwide ⋯.").
292. But see Freed, supra note 18, at 1737-38 (arguing that it is counterproductive to avoid remedying sentencing disparity in the same courthouse because doing so might affect some conjectural nationwide ideal).
293. United States v. Carr, 932 F.2d 67, 73 (1st Cir. 1991) (quoting United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991)).
294. See Alschuler, supra note 27, at 101 (describing two studies by Sentencing Commission that concluded variation in sentences between jurisdictions increased after Guidelines went into effect);
295. see also id. at 102 ("[S]ome reduction in judge-produced disparity was more than offset by an increase in prosecutor-produced disparity.").
296. See id. at 101-02.
297. See 18 U.S.C. § 3553(a)(6) (2006).
298. Of course, a judge might find that a defendant who refused to plead guilty or cooperate was nonetheless similarly situated to his codefendants who did. This might be especially true if the judge believes a defendant should not be punished for exercising his right to a trial, or if the defendant wanted to cooperate, but, unlike his more culpable codefendants, did not have any valuable information to offer. Cf. supra notes 33, 194 and accompanying text.
299. See Blakely v. Washington, 542 U.S. 296, 315 (2004) (O'Connor, J., dissenting) ("This system of unguided discretion inevitably resulted in severe disparities in sentences received and served by defendants committing the same offense and having similar criminal histories.").
300. See Rachel E. Barkow, Administering Crime, 52 UCLA L. Rev. 715, 721-23 (2005) (explaining role of regulatory agencies in criminal justice system).
301. See Gall v. United States, 128 S. Ct. 586, 596 (2007).
302. See Barkow, supra note 204, at 724.
303. See id. at 724-25 ("It is hard to think of another context where the direct target of regulation is so ill-positioned to mobilize for its position.").
304. 18 U.S.C. § 3553(a)(6) (2006).
305. See supra notes 28-33, 45 and accompanying text.
306. Cf. United States v. Krutsinger, 449 F.3d 827, 829 (8th Cir. 2006) (noting that district court judge reduced defendant's sentence to reduce disparity between his sentence and that of his codefendant since both had provided valuable information);
307. supra notes 112-120 and accompanying text.
308. See supra notes 33-41 and accompanying text.
309. Cf. United States v. Pisman, 443 F.3d 912, 915-16 (7th Cir. 2006) (discussing how district court judge reduced defendant's sentence so defendant would not receive a greater sentence than his more culpable codefendant even though codefendant had pled guilty and cooperated);
310. supra notes 133-135 and accompanying text.
311. See supra note 202.
312. See O'Hear, supra note 138, at 629-30 (describing case where judge refused to consider aggravating facts for only one defendant "because they would result in unwarranted disparities in the defendants' sentences").
313. Cf. Krutsinger, 449 F.3d at 830 (noting how timing of convictions allowed prosecutor to present evidence that increased defendant's sentence even though her conduct was nearly identical to that of codefendant);
314. supra note 120 and accompanying text.
315. See supra notes 147-151 and accompanying text.
316. See supra note 26 and accompanying text.
317. See supra notes 199-200 and accompanying text.