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February 8, 2006

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.

February 8, 2006 at 01:48 PM | Permalink


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Boscarino’s sentence of “[t]hirty-six months falls
within a properly constructed range under the Sentencing
Guidelines. (For the loss involved, the range is 33 to
41 months.) Instead of comparing his sentence to the range,
however, Boscarino wants us to compare it to Aulenta’s
sentence. Had Aulenta not pleaded guilty, his range would
have been 41-51 months. His guilty plea cut the range to
30-37 months. Because Aulenta assisted the prosecution by
testifying against Boscarino, the United States proposed a
reduction under U.S.S.G. §5K1.1, and Aulenta’s actual
sentence was 20 months. District judges are supposed to
reduce disparity in sentencing, see 18 U.S.C. §3553(a)(6),
and Boscarino contends that it is unacceptably disparate to
give the lower sentence to the more culpable offender.
Until recently we refused to address arguments by
criminal defendants who sought below-Guideline sentences,
at least when district judges recognized their authority to
depart. See United States v. Franz, 886 F.2d 973 (7th Cir.
1989). United States v. Booker, 543 U.S. 220 (2005), which
abolished “departures” by making the Guidelines advisory,
abolished this rule too. See United States v. Vaughn, No. 05-
1518 (7th Cir. Jan. 6, 2006); United States v. Arnaout, 431” id.

So Aulenta received a 3 level reduction for pleading guilty and then received additional payment for his testimony of 10 to 17 months reduced from his sentence. The system is that all similarly liable criminal defendants with similar records have the same starting point and those who plead guilty receive a 3 level reduction for acceptance of responsibility with an additional 2 level reduction for safety valve admissions. The system works until the government buys testimony under 5K1.1, because then cooperating co-defendants have incentive to lie to receive the bonus reduction. Do away with 5K1.1 reductions, start each co-defendants base offense level at the same number, then add aggravating or subtract mitigating levels; then apply the criminal history category. That would be using the system without relevant conduct and the taint of bought testimony; seems reasonable to me.

Posted by: Barry Ward | Feb 8, 2006 2:38:09 PM

Very unsurprising opinion from Easterbrook who is a prominent former prosecutor to uphold and protect the absolute control of prosecutors in creating unchecked disparity through charges and 5k1s. Still discouraging though to see that these effectively incestuous relationships to the DOJ continue to color the opinions of the higher courts. So was it really a fraud to the public when the USSC did not explain what they really meant by unwarranted disparity? That their real meaning was that it is only unwarranted when the DOJ says it is. DOJ controlled disparity in charging decisions however is the accepted exception in every case as it is always presumed to be warranted disparity.

Okay- now I get it. The 3 absolutely vital rules for defending yourself from a prosecutor's wrongful accusations-- Cooperate Cooperate and Cooperate.

Posted by: F.O. | Feb 8, 2006 6:42:03 PM

It must be the name, Boscarino. My son was sentenced 4 years for an assault that involved 12 others. (Warren County) All the others received probation, 6 months at county, or nothing. He was 18 and had one previous,Juvinile (14 y/o) Disturbing the Peace. The victims mother works for the Warren County Courts (hmmm). His sentence is the highest first offense in the nation. I have the entire history if anyone is interested. Many laws violated here.

Posted by: Tom Boscarino | May 7, 2006 5:37:07 AM

asus a33-w7 battery

Posted by: | Oct 14, 2008 10:31:54 PM

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