Justifying "variance" to remedy unwarranted disparity caused by the guidelines

The recent decision by Judge Adelman in Galvez-Barrios (details here) is an important reminder that federal judges must now consider varying from the (advisory) guidelines in order to remedy unwarranted disparities that can result from following the guidelines.  In other words, judges must recall that, in some situations, following the guidelines may itself produce disparities, and lawyers should spotlight situations in which sentencing uniformity may be better achieved in a particular case by not following the guidelines.

In Galvez-Barrios, Judge Adelman focused on the regional disparities that the guidelines create in immigration cases because some districts (and only some districts) have "fast-track" programs which give huge sentencing discounts to some defendants to foster rapid pleas.  (Read the full Galvez-Barrios here for all the details.)  Similarly, last week in US v. Revock, 2005 U.S. Dist. LEXIS 1151 (D. Me. Jan. 28, 2005), Judge Hornby concluded he should not follow the guidelines in order to avoid unwarranted co-defendant disparity: Revock's co-defendant did not receive an enhancement because he was sentenced after Blakely but before Booker and Revock was identically situated to his co-defendant.

As both Judge Adelman and Judge Hornby stressed, a distinct provision of 3553(a) commands a focus on these disparity issues: 3553(a)(6) instructs judges to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Thus, in addition to being concerned with the traditional purposes of punishment specified in 3553(a)(2), sentencing judges now have to make individualized judgments about avoiding disparities which may, in some settings, actually require varying from the federal sentencing guidelines.