Sixth Circuit isn't cruel to variance based on co-defendant disparity

The Sixth Circuit affirmed a district court's below-guideline sentence in notable opinion Monday in US v. Presley, No. 07-1147 (6th Cir. Nov. 24, 2008) (available here).  After reading this opinion, prosecutors may check into heartbreak hotel, while defendants concerned about the jailhouse rock.  Here is the start of the hound-dog opinion that sentencing judges may come to love tenderly:

Plaintiff-Appellant the United States of America appeals the district court’s resentencing of Defendant-Appellee Keith Presley to 120 months of incarceration, a downward variance from his Guidelines range of 360 months to life.  Presley and his co-defendant, Kevin Davis, were found guilty of various counts arising from a drug and money-laundering conspiracy, and both were sentenced to 360 months of incarceration.  In United States v. Davis, 430 F.3d 345 (6th Cir. 2005), we considered Presley’s and Davis’s appeals of their convictions and sentences.  We affirmed Presley’s conviction, but because certain evidence against Davis was obtained in violation of the Fourth Amendment, we reversed the district court’s denial of Davis’s motion to suppress and remanded for a determination of whether Davis’s conviction should stand.  We vacated both Presley’s and Davis’s sentences and remanded for resentencing in light of Booker.  On remand, the district court made a downward variance based on the disparity between Presley’s Guidelines sentence and the 96-month sentence that Davis received pursuant to an agreement with the government. In this appeal, the government argues that the district court erred in reducing Presley’s sentence based on the sentencing disparity, because Presley and Davis were not similarly situated on remand.  Because Presley’s sentence is both procedurally and substantively reasonable, we AFFIRM.