Seventh Circuit reverses below-guideline sentence based on co-defendant disparity

The Seventh Circuit today in US v. Pisman, No. 05-1625 (7th Cir. Apr. 7, 2006) (available here), reverses a below-guideline sentence that the district court granted with an eye on co-defendant disparity.  Here is the key portion of the court's ruling:

[C]omparison of co-defendants ... is not a proper application of the § 3553(a) mandate that a court minimize unwarranted disparities in sentences.  First, the lower sentence for Wilkerson was attributable to his decision to plead guilty to the offense and his cooperation with the government, which is a legally appropriate consideration.  The corresponding reduction in his sentence as compared to a non-cooperating defendant is not an "unwarranted" disparity.  United States v. Boscarino, 437 F.3d 634, 637-38 (7th Cir. 2006). Moreover, the § 3553(a) concern with sentence disparity is not one that focuses on differences among defendants in an individual case, but rather is concerned with unjustified difference across judges or districts. Id. at 638. In fact, the focus on the differences among defendants in an individual case in which one defendant cooperates could actually increase sentence disparity, because the resulting lower sentence for the offense to redress that disparity will be out of sync with sentences in similar cases nationwide in which there were not multiple defendants or in which one did not cooperate.  Id.  As we noted in Boscarino, it makes no sense that one culprit should receive a lower sentence than an otherwisesimilar offender, "just because the first is 'lucky' enough to have a confederate turn state's evidence." Id. The district court's approach does nothing to eliminate unwarranted disparity in sentences, and therefore is an improper application of the § 3553(a) factor.