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Disparity of sentences among co-defendants – Federal law

Author: LegalEase Solutions 



What is the current federal law on the disparity of sentences among co-defendants?


The factors to be considered in imposing a sentence falls under 18 U.S.C. § 3553. The section reads as follows:

  • The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(* * *)

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the Federal Sentencing Act:

[R]equires judges to consider the Guidelines “sentencing range established for … the applicable category of offense committed by the applicable category of defendant,” § 3553(a)(4)(A), the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1), (3), (5)-(7) (2000 ed. and Supp. IV).  And the Act nonetheless requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. § 3553(a)(2) (2000 ed. and Supp. IV) (see Appendix, infra, for text of § 3553(a)).”

Id. at 259-60.

Regarding co-conspirators and sentence disparities, it is not uncommon for this to occur. In United States v. Conatser, 514 F.3d 508 (6th Cir. 2008), the Court held that “[d]isparities between the sentences of coconspirators can exist for valid reasons, such as differences in criminal histories, the offenses of conviction, or one coconspirator’s decision to plead guilty and cooperate with the government.” Id. at 522.

However, challenging the disparity between one co-defendant/co-conspirator’s sentence from another co-defendant/co-conspirator’s sentence is not an easy avenue to explore. The Sixth Circuit has ruled on this repeatedly and has reaffirmed its stance on the matter.

In United States v. Presley, 547 F.3d 625 (6th Cir. 2008), the Sixth Circuit held that “[s]ection 3553(a)(6) instructs sentencing courts to consider ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’” Id. at 631. The Court also noted that “‘[s]ubsection 3553(a)(6) is concerned with national disparities among the many defendants with similar criminal backgrounds convicted of similar criminal conduct.’” Id. (quoting United States v. Simmons, 501 F.3d 620, 623 (6th Cir.2007)).

In Presley, the Court considered disparities of sentences of two codefendants and observed that “the district court is not required to consider that type of disparity under subsection 3553(a)(6).”  Id. at 631.  The Court opined that § 3553(a)(6) is not concerned “‘with disparities between one individual’s sentence and another individual’s sentence, despite the fact that the two are co-defendants.’” Id.  However, the Court observed that a district judge could “exercise his or her discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.” Id.

In United States v. Wallace, 597 F.3d 794 (6th Cir. 2010), the Sixth Circuit gave a very good overview of the law on disparity of sentences, the minimum standard for a district court in handing down a sentence and considering downward sentencing factors, and what must be argued on appeal when a sentence is challenged on the basis of disparity.

“‘[C]ourts of appeals must review all sentences . . . under a deferential abuse-of-discretion standard.’” Id. at 802. (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “Where a party has failed to object to a procedural defect, we review claims of procedural unreasonableness for plain error.” Id. (citing United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir.2008) (en banc )).

In Wallace, “[t]he district judge, at the behest of the government in reference to United States v. Bostic, 371 F.3d 865 (6th Cir.2004), inquired as to whether Wallace had ‘any specific objections that you would make to the sentence imposed.’ Wallace did not respond with any objections, so her appeal is subject to plain error review—not abuse of discretion.” Id. “To show plain error, a defendant must show (1) error (2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. (citing Vonner, 516 F.3d at 386).

“To show ‘plain error,’ Wallace needs to also demonstrate that the error ‘affected defendant’s substantial rights’ and that it ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” Id. at 806 (quoting Vonner, 516 F.3d at 386). The Wallace Court followed the logic of previous Sixth Circuit cases that found “that § 3553(c) generally implicates a ‘substantial right.’ The right at issue is the right to meaningful appellate review. That right is equally substantial for someone who is sentenced to either a guidelines sentence or an above-guidelines sentence.” Id. at 807.

In this case, Wallace challenged the procedural reasonableness of her sentence based on the district court’s failure to consider her argument that she received a longer sentence than White-Baber (co-conspirator/co-defendant), even though he played a much larger part in the conspiracy. Id. The government responded with several factors that explained the sentencing disparity but could not point to any part of the sentencing transcript that shows that the district court ever considered these issues. Id. The government did notes the fact that White-Baber pled guilty and received the corresponding reduction in his sentence. Id. Between the three level drop for acceptance of responsibility and Wallace’s two level increase for obstruction of justice, there was a five-level swing. Id. Second, White-Baber has sickle-cell anemia, which all parties agreed led the district judge in that case to vary downward from the sentencing guidelines. Id.

The problem with the government’s argument was that these justifications, while offered by the government at the sentencing hearing, were never adopted or even acknowledged by the district judge. Id. “The district judge’s discussion of the 3553(a) factors was very abbreviated. He stated only that he was sentencing pursuant to ‘careful consideration of the factors that we are also to give consideration to under Title 18 of the United States Code Section 3553(a).’” Id. “In United States v. Chandler, 419 F.3d 484, 488 (6th Cir.2005), this Court noted that ‘there is no requirement that the district court . . . engage in a ritualistic incantation of the § 3553(a) factors [but that] the district court’s sentence should nonetheless reflect the considerations listed in § 3553(a).’” Id.

“In considering a sentencing judge’s obligation to address sentencing disparities under § 3553(a)(6), this Court has been clear that, ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,’ does not apply to co-conspirators.” Id. at 803 (quoting 18 U.S.C. § 3553(a)(6)). “‘[T]his factor concerns national disparities between defendants with similar criminal histories convicted of similar criminal conduct-not disparities between co [conspirators].’” Id. (quoting United States v. Conatser, 514 F.3d 508, 521 (6th Cir.2008)). Moreover, the Wallace Court affirmed that “[a] district judge is not required to consider the disparity between the sentences of co-defendants.” Id. “‘A district judge, however, may exercise his or her discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.” Id. (quoting United States v. Simmons, 501 F.3d 620, 624 (6th Cir.2007)).

Applying that law to Wallace, the Court held that “Wallace is challenging the procedural reasonableness of her sentence based on the district court’s failure to consider non-frivolous arguments for a lower sentence.” Id. “Whether a district judge decides to consider the argument is discretionary, but the argument is certainly non-frivolous.” Id. (citing United States v. Presley, 547 F.3d 625, 630 (6th Cir.2008) (noting that the district court considered the “need to avoid an unwarranted disparity” between the defendant’s sentence and a co-defendant’s sentence as “the most important consideration”)).“‘When a defendant raises a particular[, nonfrivolous] argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant’s argument and that the judge explained the basis for rejecting it.’” Id. (quoting United States v. Gapinski, 561 F.3d 467, 474 (6th Cir.2009)).

Given that understanding, “[t]he question that remains is whether this error is sufficient to satisfy the stringent standard of plain error review.” Id. at 804. “This Court’s opinion in Vonner shows that plain error review should be extremely deferential to the sentencing judge. Nonetheless, even under this more deferential standard, this case must be remanded for re-sentencing.” Id. “It is well-settled that a district judge need not ‘give the reasons for rejecting any and all arguments by the parties for alternative sentences,’ nor must she give ‘the specific reason’ for a within-guidelines sentence.” Id. (citing Vonner, 516 F.3d at 387). “In Vonner, however, the majority acknowledged that the crucial question is ‘whether the record makes clear that the sentencing judge listened to each argument, considered the supporting evidence, was fully aware of the defendant’s circumstances and took them into account’ in sentencing him.’” Id. (quoting Vonner, 516 F.3d at 387) (internal citations omitted).

Further, the Court found that “[i]t is uncontested that Wallace was not the mastermind of the conspiracy and that White-Baber was more involved. While the government offered a reasonable explanation for the disparity in sentences, the district court should not be allowed to delegate its obligation to ‘state in open court the reasons for its imposition of the particular sentence’ to the prosecutor and the defendant.” Id. (citing 18 U.S.C. § 3553(c)). “A district judge ‘must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.’” Id. (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586).

The Wallace Court specifically noted this quotation from United States v. Petrus, 588 F.3d 347 (6th Cir. 2009):

From every perspective, it is preferable for district courts to explicitly address every nonfrivolous argument raised by a defendant. Expressly articulating the grounds for rejecting the particular claims raised by a defendant, at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid the difficulties of parsing the sentencing transcript when determining whether the district court in fact considered the defendant’s arguments.

Id.  at 804-05 (quoting Petrus, 588 F.3d at 53).

Previously, the Sixth Circuit in “Vonner . . . emphasize that the record must ‘make[ ] clear that the sentencing judge considered the evidence and arguments.’” Id. at 805 (quoting Vonner, 516 F.3d at 387) (quoting Rita, 551 U.S. at 359, 127 S.Ct. 2456)). Regarding the facts in Wallace specifically, “[o]n the transcript of the sentencing hearing, we simply cannot determine whether the district judge considered the disparity between Wallace’s and White-Baber’s sentences. This failure to even acknowledge Defendant’s argument mandates remand in this case.” Id.

Finally, the Wallace Court acknowledged the frequency in which defendants appeal their sentence because the district court may or may not have adequately considered factors before imposing sentence. “A general sense of deference to district courts on sentencing leads us to affirm sentences where the district judge has failed to fully explain the reason for the sentence.” Id. at 805-06; See, e.g., Petrus, 588 F.3d at 356 (affirming sentence where judge addressed arguments “in a bare-bone fashion.”); United States v. Simmons, 587 F.3d 348, 361 (6th Cir.2009) (affirming sentence with little comment from the district court where issue is “conceptually straightforward such that we may assume, even absent express analysis by the judge, that the sentence reflects consideration of the argument,” and the argument was purely legal, not factual) (citation and quotation omitted); United States v. Duane, 533 F.3d 441, 453 (6th Cir.2008) (affirming sentence where district court did not respond to a nonfrivolous argument because “the district court imposed a within-Guidelines sentence, addressed the factors it found relevant, and addressed the majority of [Defendant’s] arguments”); United States v. Lapsins, 570 F.3d 758, 774 (6th Cir.2009) (affirming sentence where the district court did not specifically respond to Defendant’s arguments because it stated “that it had accounted for the ‘nature and circumstances’ of the offense and the history and the characteristics of [Defendant] ); but see United States v. Blackie, 548 F.3d 395, 401 (6th Cir.2008) (finding the district court “plainly erred when it did not refer to the applicable Guidelines range and failed to provide its specific reasons for an upward departure or variance at the time of sentencing); United States v. Barahona-Montenegro, 565 F.3d 980, 984 (6th Cir.2009) (remanding for resentencing where the “district court’s oral sentence fail[ed] to calculate clearly the appropriate Guidelines range, but also [did not] adequately explain the chosen sentence”); United States v. Thomas, 498 F.3d 336, 341 (6th Cir.2007) (remanding for resentencing on review for reasonableness where Court was “unsure as to whether the district court adequately considered and rejected [Defendant’s] arguments regarding proper application of the § 3553(a) factors or whether it misconstrued, ignored, or forgot [Defendant’s] arguments); United States v. Johnson, 488 F.3d 690, 700 (6th Cir.2007) (remanding when Court was “unable to point to anything in the record to confirm” the Court’s view that district court understood its discretion and the need to consider the § 3553(a) factors); United States v. Howell, No. 06-4306, 2009 WL 3765508 (6th Cir. Nov.12, 2009) (finding plain error based on the district court’s failure to explain its sentence in part because the district court’s explanation left the Court unsure why co-defendants received substantially different sentences)).

In United States v. Sharp, 424 F. App’x 475, 487 (6th Cir. 2011), the Sixth Circuit reaffirmed Wallace Court’s opinion and held that “[a] district judge is not required to consider the disparity between the sentences of co-defendants.   However, a district judge “may exercise his or her discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.”  The Court also observed that, to be procedurally reasonable, “[t]he district judge is … under a more rigorous duty to make explicit its consideration of the factors when a defendant makes a particular argument.” Id. (quoting United States v. Simmons, 501 F.3d 620, 625 (6th Cir.2007)).