United States v. Gordon, No. S2 03 CR. 1115-03 (RWS), 2006 WL 1675921 (S.D.N.Y. June 16, 2006)
Since Booker, a growing number of courts have held that sentencing judges are no longer prohibited from considering the disparity between co-defendants in fashioning a reasonable sentence. The Second Circuit, however, is not one of those courts. Indeed, in Toohey, the Second Circuit found that the appropriate reference group for purposes of Section 3553(a)(6) analysis ("the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct") is all "similarly situated defendants nationwide." Notwithstanding that finding, district courts in the Second Circuit continue to consider co-defendant disparity in fashioning sentences. Gordon is one such example.
Gordon plead guilty to certain fraud offenses. Based on his offense level and criminal history score, Gordon faced an advisory Guidelines term of imprisonment of 46 to 57 months. The district court found, however, that Gordon was less culpable than his co-defendant Darrin Mosca (who received a sentence of 46 months imprisonment) because Gordon was not an organizer or leader of the underlying conspiracy, was not involved in the planning of the conspiracy and maintained a smaller role in the conspiracy than Mosca. Thus, the district court found that to "sentence Gordon within his guideline range would be to sentence him to the same term of imprisonment" as Mosca and therefore would "create an unwarranted sentence disparity." The district court therefore sentenced Gordon to a non-Guidelines 37 month term of imprisonment.
Is it time for the Second Circuit to reconsider Toohey and its findings concerning co-defendant disparity?
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