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January 12, 2006

Major Fourth Circuit Booker decision on consideration of state/federal disparity

Providing a fitting, though somewhat discouraging, way to celebrate Booker's birthday and its business-as-usual impact on federal sentencing, the Fourth Circuit today has issued a major state/federal disparity ruling in US v. Clark, No. 05-4274 (4th Cir. Jan. 12, 2006) (available here).  In Clark, the court finds unreasonable the district court's reliance on state/federal disparity to impose a below guideline sentence.  Here is the start of the Clark opinion for the court, per Judge Luttig:

Defendant-appellee, Synina Clark, was convicted in federal court for the federal crime of conspiring to distribute crack cocaine, which crime she committed in Virginia.  The United States Sentencing Guidelines provided that she be sentenced to between 46 and 57 months.  The district court sentenced Clark to eight months instead, according "great weight" to the fact that Clark would have received a much lower sentence for a comparable state crime in Virginia.

Because the district court either failed to consider or considered improperly the need to avoid unwarranted sentencing disparities among federal defendants as required by 18 U.S.C. § 3553(a)(6), the sentence imposed by the district court is vacated and the case is remanded for resentencing.

Both other judges on the panel in Clark, Judges Motz and King, wrote short separate concurrences.  Here is how Judge Motz starts hers:

I agree that the sentence in this case must be vacated and the case remanded for resentencing. I write separately to emphasize that, given the substantial, albeit not unchecked, discretion federal district courts enjoy after United States v. Booker, 125 S. Ct. 738 (2005), they can take into account state sentencing practice in certain cases.

And here is how Judge King gets his opinion started:

Although I agree with the result reached by Judge Luttig, as well as his view that it was inappropriate for the district court, in sentencing Clark, to rely on the sentence she could have received in state court had she been prosecuted there, my analysis of this case is more aligned with that of Judge Motz. I write separately to emphasize my view that, apart from the sentencing court’s improper and erroneous reliance on the sentence Clark could have received in state court, the considerations that informed its sentencing decision were entirely appropriate under 18 U.S.C. § 3553(a).

In light of these concurrences, I find it a bit strange that Judge Luttig ended up authoring the opinion of the court.  But, as I have suggested recently, we can find a lot of wisdom in the bard of Bob Dylan: "It ain't no use to sit and wonder why, babe/ It don't matter, anyhow.... Don't think twice, its alright."

UPDATE: I've now had a chance to read Clark closely, and it is first-rate work by all the judges.  Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that "the consideration of state sentencing practices is not necessarily impermissible per se."

January 12, 2006 at 03:19 PM | Permalink

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Interesting, albeit problematic, set of opinions.

Perhaps someone can answer this query. Judge Motz, without providing a citation to a statute or legislative history, writes that, "Congress established a Sentencing Commission and authorized detailed sentencing guidelines at least in part to eliminate unwarranted disparities in sentences among federal defendants." 3553(a)(6), however, speaks of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." This case certainly seems like one in which "similar conduct" is punished quite differently under federal and state laws.

My question is, why doesn't the plain language 3553(a)(6) permit sentencing courts to look to analogous state laws when refusing to do so threatens to impose widely disparate sentences on two defendants arrested in the same town and on the same day, but by authorities from different governments?

I'm also curious as to what happens on remand. As Judge King hints in his concurrence, could the district court give the same sentence on remand, this time justifying the result with references to other subsections of 3553(a)?

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Posted by: richard | Jun 26, 2007 2:40:35 PM

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