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December 20, 2006

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.

December 20, 2006 at 12:16 PM | Permalink


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I think the judge was wrong here. Very wrong. Let's start at first principles. The defendant stands convicted of a particularly egregious crime (distributing a lot of cocaine). He has imposed significant hardship on society and is likely do more once he gets out. So I think that the idea that he is entitled to some sort of outcome based fairness vis-a-vis his cohort betrays a fetish for "rights" that is all too common. His rights with respect to his cohort, I think, should be limited to the inquiry of whether he was treated arbitrarily and capriciously. That the government, put in a difficult spot, thought it best to cut a deal with a co-defendant should not automatically redound to the benefit of the other defendant, especially in a situation where exclusion of evidence is the cause, given the policy limitations on the effects of the Exclusionary Rule.

Plus, is it not arbitrary and capricious to give some defendants a break simply because they happened to get lucky by having a co-defendant with a winning legal argument? I think so.

Posted by: federalist | Dec 20, 2006 1:55:34 PM

you're simply wrong.

Posted by: seaton | Dec 20, 2006 7:35:48 PM

I think the judge made a legal error trying to do the right thing. The exclusionary rule produces disparities. The standing requirement to claim fourth amendment rights results in different evidence being admissible against different parties. If we can have some defendants go free due to suppression of evidence, why can't we have some defendants serve less time?

The judge seemed offended that the parties had negotiated a deal behind his back rather than letting him decide the motion for a new trial, which he was apparently intending to deny.

Posted by: John Carr | Dec 21, 2006 8:13:38 AM

John, my point re exclusionary rule was that the remedies under the exclusionary rule should be limited. This sentencing decision is in tension with that basic precept.

Posted by: federalist | Dec 21, 2006 11:24:37 AM

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