Second Circuit Approves Co-Defendant Disparity As A Basis For A Non-Guidelines Sentence . . . Sort Of

United States v. Wills, Docket No. 06-0115-cr (2d Cir. Feb. 5, 2007) (found here)

Wills's statutory minimum was 120 months imprisonment, and his advisory Guidelines range was 292-365 months imprisonment.  The longest sentence imposed on one of Wills's co-defendants was 96 months imprisonment.  Based on the disparity between the sentence Wills faced and those imposed on his co-defendants (as well as other Section 3553(a) factors not discussed here), the district court imposed a sentence of 172 months imprisonment. 

Naturally, the Government appealed, arguing that the district court erred by considering co-defendant disparity rather than disparity among defendants nationwide pursuant to 18 U.S.C. § 3553(a)(6).  The Second Circuit rejected the Government's arguments.  Sort of.

Initially, the Second Circuit noted that Section 3553(a)(6) was intended to eliminate national disparity.  The Second Circuit then hedged some, conceding that "the plain language of 3553(a)(6) does not on its face restrict the kinds of disparity a court may consider" -- such as the disparity between the sentences imposed on co-defendants -- and that "[w]e do not, as a general matter, object to district courts' consideration of similarities and differences among co-defendants when imposing a sentence."

Consideration of those "similarities and differences," however, must involve consideration of more than the similarities and differences in the sentences imposed on co-defendants.  Thus and relying on the Third Circuit's work in United States v. Parker, 462 F.3d 273 (3d Cir.), cert. denied, 127 S.Ct. 462 (2006), the Second Circuit directed that so "long as factors considered by the sentencing court are not inconsistent with those listed in 3553(a) and are logically applied to the defendant's circumstances, we accord great deference to the court's broad discretion in imposing a sentence within a statutory range."

So, what does all of this mean?  It basically means that the disparity between the sentences imposed on co-defendants can serve as the basis for a non-Guidelines sentence.  But any analysis leading to that conclusion must be undertaken in the broader context of the factors set forth in Section 3553(a) -- to wit, "it is appropriate for a district court, relying on its unique knowledge of the totality of circumstances of a crime and its participants, to impose a sentence that would better reflect the extent to which the participants in a crime are similarly (or dissimilarly) situated and tailor the sentences accordingly."

So, what did this mean for Wills?  Well, the district court "erred . . . not because he considered Wills's sentence in relation to those of his co-defendants, but because he provided no assessment of how Wills was similarly situated to his co-defendants and why that would matter in light of the differences.  Rather, the judge pointed only to facts showing the Wills was not convicted of conduct similar to that of his co-defendants and otherwise was not similarly situated."

One final note -- An insight into the Second Circuit's thinking as to how narrowly they may intend to interpret co-defendant disparity going forward.  The whole paragraph is quoted here because the whole paragraph is worth reading:

The district court explicitly invoked 3553(a)(6), the primary purpose of which was to minimize nationwide disparities, in reducing Wills's sentence in light of his co-defendants' sentences.  It is not entirely clear what exactly it means for a district judge to consider the effects of an individual defendant's sentence on nationwide disparities.  On the one hand, in order to avoid redundancy with 18 U.S.C. 3553(a)(4), it must require something different than mere consideration of the Guidelines, which are the statute's primary vehicle for reducing nationwide sentence disparities.  On the other hand, it cannot be that a judge must act as social scientist and assess nationwide trends in sentencing with each new defendant -- in effect, intuiting Guidelines revisions on an interim basis as a proxy for the Sentencing Commission.  We think the mandate to take into account nationwide disparities under 3553(a)(6), as distinct from the need to give due weight to the Guidelines under 3553(a)(4), is modest.  Even in fulfilling their primary duty of rendering just sentences with an eye toward the particular circumstances before them, judges must be mindful of the general goal, however elusive, of national consistency.