United States v. Johnson, Docket No. 05-3811-cr (2d Cir. Oct. 10, 2007)
Johnson argued on appeal that, among other things, the district court erred when denying his request for a non-Guidelines sentence because it failed to consider the disparities between federal and state penalties for his offense of conviction. In response, the Second Circuit noted its previous findings that "the primary purpose of [Section 3553(a)(6)] was to reduce unwarranted sentence disparities nationwide" and that "requiring district courts to reduce a defendant's srentence whenever he might have been subjected to different penalties had he been prosecuted in state court would make federal sentences dependent on the law of the state in which the sentencing court was located, resulting in federal sentencing that would vary from state to state." The Second Circuit therefore concluded that it could not "say that the District Court erred by declining to adopt an approach that would have decreased sentencing disparities between Johnson and any similarly-situated federal defendant prosecuted in different states."
Does this decision represent an absolute prohibition? Or is the Second Circuit's phrasing -- that the district court did not err in failing to consider state-federal disparity -- mean that a district court similarly would not err in considering it? Is the door to state-federal disparity still open (if only a crack)?