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April 28, 2009

CLR note on co-defendant disparity after Booker

Now available on-line is this new Columbia Law Review note titled "Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants' Sentences?".  Here is the piece's abstract:

In the 2005 case of United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were merely advisory and therefore no longer binding on trial judges.  Since then, some judges have based departures from the Guidelines on the finding that the disparity between codefendants’ sentences is unwarranted.  Although basing a departure on this consideration was universally impermissible before Booker, most circuits have now held that consideration of codefendant disparity is a permissible basis for departure.  However, some circuits have held that this disparity is still not a justification for departure or that departures may not be based on codefendant disparity in certain types of cases.  This Note argues that Booker and subsequent Supreme Court decisions permit trial judges to remedy disparity between codefendants’ sentences in all cases where the judge finds that the disparity is unwarranted.  It then shows how consideration of this disparity furthers Congress’s goal of increased sentencing uniformity and ensures greater fairness in the sentencing of defendants who only played a minor role in a crime.

April 28, 2009 at 07:19 PM | Permalink


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A timely article for me. I have this issue coming up in a sentencing on June 2nd. Two defendants, same undercover crack buy. For whatever reason, the USA indicts them separately and they end up before different judges. Both have been remanded by the 8th Circuit for reconsideration under Kimbrough. The other defendant has already been sentenced and given a downward variance by his judge. The judge I'm assigned to has not expressed any disagreement with the crack guidelines to date, so I want to argue unwarranted disparity between co-defendants if he is also not given a downward variance.

Posted by: Webb Wassmer | Apr 29, 2009 10:26:33 AM

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