A thoughtful variance based on co-defendant disparity

The Claiborne and Rita have many focused on the ugly realities of how circuit courts are applying reasonableness review.  But no one should lose sight of all the good post-Booker work still being done in the district courts.  Another example this week comes from Judge Avern Cohn in United States v. Presley, No. 00-80756 (ED Mi Dec. 19, 2006) (available here), which involves a resentence following a Booker remand and deals with the issue of co-defendant disparity in sentencing.  Though the history of Presley are complicated, this conclusion sums up the ruling:

As discussed above, Presley and Davis were both involved in a large scale cocaine conspiracy involving hundreds of kilograms of cocaine and millions of dollars in cash.  Both were tried and both were convicted by the same jury.  By happenstance, a small portion of the evidence at their trial was found to be excludable as to Davis but not as to Presley.  Accordingly, the Court on remand was to review the overall evidentiary basis for the conviction of Davis to see if that conviction could stand without the excluded evidence.  The government had an obligation to see if that case could be made.  For reasons known only to the government, it chose not to make the effort and entered into a compromise with Davis which resulted in a significantly lower sentence 18 for him; a "windfall" in the words of the government.

As the Court of Appeals observed in Williams, supra, it would violate the spirit of the guidelines and be particularly inequitable for Davis to receive a 96 month sentence and Presley a 360 month sentence for the same conduct.  Booker gives the Court discretion to impose a reasonable sentence sufficient, but no greater than necessary, to comply with the purpose set forth in § 3553(a)(2).  The Court is exercising that discretion in a reasoned manner.  It is for these reasons that Presley has been sentenced overall to 120 months, the mandatory minimum under Count 1.