Seventh Circuit addresses co-defendant "disparity"

The Seventh Circuit today, per Judge Easterbrook, continued to show its affinity for within-guideline sentences and pre-Booker realities through US v. Boscarino, No. 05-2657 (7th Cir. Feb. 8, 2006) (available here).  In Boscarino, the court affirmed a sentence over a claim that it was unreasonably high compared to the sentence given to a cooperating co-defendant (and did so with rhetoric that will surely led to Judge Easterbrook receiving many Valentine's Day cards from Assistant US Attorneys).  Here are some snippets from Boscarino:

Boscarino and Aulenta had similarly clean records before these convictions, and they engaged in similar conduct, but a sentencing difference is not a forbidden "disparity" if it is justified by legitimate considerations, such as rewards for cooperation....

There would be considerably less cooperation — and thus more crime — if those who assist prosecutors could not receive lower sentences compared to those who fight to the last.  Neither Booker nor § 3553(a)(6) removes the incentive for cooperation — and because this incentive takes the form of a lower sentence for a cooperator than for an otherwise-identical defendant who does not cooperate, the reduction cannot be illegitimate.  After all, §3553(a)(6) disallows "unwarranted sentence disparities" (emphasis added), not all sentence differences.

Another way to put this point is to observe that the kind of "disparity" with which §3553(a)(6) is concerned is an unjustified difference across judges (or districts) rather than among defendants to a single case.  If the national norm for first offenders who gain $275,000 or so by fraud is a sentence in the range of 33 to 41 months, then system-wide sentencing disparity will increase if Boscarino's sentence is reduced so that it comes closer to Aulenta's.  Instead of one low sentence, there will be two low sentences.  But why should one culprit receive a lower sentence than some otherwise-similar offender, just because the first is "lucky" enough to have a confederate turn state's evidence?  Yet that is Boscarino's position, which has neither law nor logic to commend it.

Sentencing disparities are at their ebb when the Guidelines are followed, for the ranges are themselves designed to treat similar offenders similarly.  That was the main goal of the Sentencing Reform Act.  The more out-of-range sentences that judges impose after Booker, the more disparity there will be.  A sentence within a properly ascertained range therefore cannot be treated as unreasonable by reference to §3553(a)(6).

I think Judge Easterbrook is generally on solid ground until he gets to his last paragraph, where he fails to fully grapple with the realities of how the strict application of the guidelines can some time produce disparities (such as, according to the USSC itself, in the operation of the crack guidelines or career offender enhancements). 

Indeed, Judge Easterbrook's last paragraph seems inconsistent with what comes before when Judge Easterbrook stresses that it is legitimate (as a matter of law and logic) for a judge to impose an out-of-range sentence to reward cooperation.  And, since roughly 2 out of every 3 out-of-range sentences that judges impose after Booker are still the result of a prosecutor's motion, Judge Easterbrook's closing pro-guideline dicta seems a bit much.