March 20, 2007
Judge Adelman on what constitutes unwarranted disparity
Sentencing Hall of Famer Judge Lynn Adelman issued an an effective little opinion yesterday in US v. McGee, No. 06-CR-140 (E.D. Wis. Mar. 19, 2007) (available for download below), which concludes with this discussion of unwarranted disparity under the Booker regime:
There is a tendency to equate compliance with the § 3553(a)(6) admonition to avoid unwarranted disparity with fealty to the guidelines. See generally United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir. 2006) (quoting Boscarino, 437 F.3d at 638) (stating that "in most cases 'disparities are at their ebb when the Guidelines are followed'"). However, courts must be careful, post-Booker, not to reimpose mandatory or near mandatory guidelines under the guise of avoiding disparity. More importantly, § 3553(a)(6) refers only to unwarranted disparity. In my view, a disparity between the sentences of two similarly situated defendants will, under the Booker advisory guideline regime, be unwarranted only if the judge fails to provide sufficient reasons for the difference, grounded in the § 3553(a) factors. See Webster's New College Dictionary 1211 (1995) (defining "unwarranted" as "having no justification; groundless"). Variance from the guidelines alone cannot be equated with unwarranted disparity.
March 20, 2007 at 10:45 AM | Permalink
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Judge Adelman's understanding of § 3553(a)(6) echoes the thorough analysis of "worthiness" as a gauge for proportionality set forth in Judge Gilman's recent majority opinion in United States v. Husein, -- F.3d --, 2007 WL 623448 (6th Cir. Mar. 2, 2007). Nice to see some (legally accurate and defensible) consensus beginning to emerge.
Posted by: anon | Mar 20, 2007 11:01:27 AM