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September 21, 2005

More on consideration of state-federal disparity after Booker

As detailed in a series of posts here and here and here, the First Circuit in US v. Wilkerson raised and then ducked the issue of whether federal-state sentencing disparities may be considered post-Booker.  This issue will surely continue to arise, however, because many defendants may be able to assert in federal sentencing proceedings that they would have received much lower sentences if prosecuted in state court.

Indeed, a reader was kind enough to send me (and give me permission to post) a brief from US v. Jeremiah recently filed in the Eighth Circuit, which argues that the "District Court's failure to consider state court sentences for the same conduct of similarly situated defendants in the county where Appellant was arrested was unreasonable under Booker and 18 U.S.C. § 3553(a)(6)."  This brief, which is an interesting read, can be downloaded below.  Here are the key facts and the main issue as stated in the brief:

Appellant pled guilty on March 1, 2004, to one count in an information of use of transmitting information about a minor in violation of 18 U.S.C. § 2425 for using the Internet to communicate about a sex act with a police officer posing as a minor female.... [T]he government stipulated that, if charged in state court in Arkansas, Appellant would have received a sentence of five years probation, 90 days incarceration, and a fine.  Appellant moved the District Court to depart downward and reduce the sentence based on the comparable state sentences under 18 U.S.C. § 3553(a)(6).

The District Court noted the "great disparity," but ultimately resentenced Appellant to the [within guideline] sentence of 27 months.  Appellant appeals the sentence for unreasonableness because of the federal-state disparity for the same conduct.

Download jeremiah_state_federal_disparity_brief.pdf

September 21, 2005 at 10:56 PM | Permalink

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Comments

I'm not a student of law, I have a family member in Ohio Reformatory for Women, my wife of 29 years. She did wrong for which she has a sentence of 2 years, the minimum is one. She has no prior charges or convictions. Will the Blakley Law help her. Her name is Janie Allen she was sentenced in Hamilton County.

Thank you for any response.
Mike

Posted by: Mike Allen | Sep 25, 2005 7:51:21 PM

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