Interesting 8th Circuit Booker remand

The Eighth Circuit issued an interesting opinion granting a Booker plain error remand today in US v. Jimenez-Gutierrez, No. 04-2119 (8th Cir. Oct. 13, 2005) (available here).  In Jimenez-Gutierrez, the district judge, sentencing before Blakely, expressed displeasure with having to give a long guideline sentence to one defendant after a co-defendant received a far lower sentence apparently as a result of cooperation with the government.  That expression of displeasure enabled the defendant to satisfy the Eighth Circuit's plain error standard.  But it also prompted Judge Colloton to write a separate concurring opinion to make this observation:

It seems to me that there is a substantial question whether a district court may, in essence, create a "sentence disparity" by granting a reduction under the now-advisory guidelines to one defendant based on the provision of substantial assistance, and then "reasonably," within the meaning of United States v. Booker, 125 S. Ct. 738 (2005), vary from the advisory guidelines based solely on this "disparity" when sentencing another defendant who declined an opportunity to provide such assistance. Congress clearly thought it appropriate that defendants who provide substantial assistance should receive lower sentences than would otherwise be imposed, see 28 U.S.C. § 994(n); 18 U.S.C. § 3553(e), so it is difficult to conclude that Congress at the same time believed that such reductions in sentence would cause "unwarranted sentence disparities" that need to be avoided.