Important disparity statement (dicta?) from the 1st Circuit

Thanks to Appellate Law & Practice's post here, I see the First Circuit has provided some food-for-thought (dicta-for-thought?) today in US v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) (available here).  As AL&P spots, at the end of a lengthy opinion, the Wilkerson court's explanation of a plain error remand seems to endorse post-Booker consideration of disparities between state and federal sentencing:

The district judge sentenced Wilkerson to the lowest available sentence under the Guidelines.  He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases, but stated that the Guidelines did not permit him to take that disparity into account.  The district judge also observed that Wilkerson had the most horrible young life he had seen in 17 years on the bench.  Both the need to avoid unwarranted sentencing disparities and the history and characteristics of the defendant are among the factors to be considered by the now advisory Guidelines. 18 U.S.C. § 3553(a).  As this court recognized in Heldeman, where there is a reasonable indication that the district judge might well have given a different sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, we are persuaded that remand is required.  We express no view on whether defendant should be resentenced or on any possible resentence.

I am sure prosecutors are not going to be keen on this passage.  Indeed, I would bet they will seek re-hearing on this point since, as noted in this post, DOJ has been saying it will appeal any district court sentence with a variance based on comparisons to state sentencing laws.  Wilkerson as it stands seems to approve such comparisons.