United States v. Behr, No. S1 03CR1115-02 (RWS), 2006 WL 1586563 (S.D.N.Y. June 9, 2006)
Defendant Behr was convicted -- along with two other co-conspirators -- of certain conspiracy and mail fraud offenses. Behr, however, was involved in the conspiracy for a much shorter period of time than his co-defendants and, according to the Court, was therefore less culpable than his co-defendants. Specifically, "unlike his co-defendants . . . who were involved in the conspiracy for over a year from its inception, Behr's involvement was at the tail end and was limited to a short period of time." And for that reason (among others) Judge Sweet imposed a non-Guidelines sentence (which resulted in Behr's release because he had already been housed for 29 months at the MCC). Although Judge Sweet did not address Second Circuit standards concerning the question of co-defendant disparity, Judge Sweet did interestingly note the following:
"The guidelines range for both of the planners of the fraudulent scheme . . . is 46-57 months. Given the extensive nature of their involvement and culpability as compared to Behr's, a difference of only nine months [Behr's Guideline range was 37-46 months] does not adequately reflect the differences [between the conduct of Behr and his co-defendants]."
An interesting and alternative analysis. Not only could one argue that a defendant should receive a shorter sentence because of short sentences imposed on co-defendants, but one could also argue that a defendant should receive a shorter sentence because the sentences imposed on more culpable co-defendants are not sufficiently disparite.