State, Federal Disparities and Nonguidelines Sentencing

By Michael J. Gilbert and Matthew J. Lang

January 9, 2007


Many crimes may be prosecuted in either state or federal court. Conventional wisdom is that, in many areas - particularly narcotics offenses - a conviction in federal court will result in a significantly longer sentence than one in state court.

Post-Booker, some federal defendants have successfully sought reduced sentences by arguing that the judge should take into account, under 18 USC §3553(a), the disparity between state and federal sentences for the same crimes. The courts that have considered this argument have not reached uniform results. While some circuits have ruled the argument invalid, the issue is still open in many other circuits, including the U.S. Court of Appeals for the Second Circuit.

In January 2005, the U.S. Supreme Court ruled in United States v. Booker, that 18 USC §3553(b)(1), which purported to make the U.S. Sentencing Guidelines mandatory, is unconstitutional. United States v. Booker, 543 US 220, 125 SCt 738 (2005). The Court struck the mandatory language of the statute and held that, although courts should consult the guidelines in fashioning a sentence, courts should "tailor the sentence in light of other statutory concerns . . . ." outlined in 18 USC §3553(a). Id. at 764.

Section 3553(a) directs sentencing courts to consider, among other factors: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the kinds of sentences available; and (3) the need to avoid unwanted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. See §3553(a)(1),(3) and (6). The statute directs courts to analyze these factors with a view toward imposing a sentence "sufficient, but not greater than necessary," to comply with the purposes set forth in §3553 paragraph 2.

'Unwarranted Sentencing Disparities'

After Booker, some federal courts have relied on the reference in §3553(a)(6) to "unwarranted sentencing disparities" to take account of the disparate treatment of defendants convicted in state court and federal court for the same conduct. In United States v. Lucania, 379 FSupp2d 288, 296 (EDNY 2005), for example, the court imposed a non-guidelines sentence, in part, because "[a] conviction for similar conduct in a New York state court would likely earn the defendants a substantially more severe sentence than that called for by the Guidelines." Lucania involved a federal prosecution for conspiracy to deal in and transport firearms, and presented the relatively rare situation where the state system provided for a longer sentence than the federal.

The validity of taking the disparity into account, under the Court's holding, would apply to the more common situation of crimes that typically result in shorter sentences if prosecuted in state court.

For example, in United States v. Rodriguez, 2005 WL 4167642, *5 (D. Neb. 2005), the court sentenced the defendant to 60 months' imprisonment (where the parties stipulated to a guidelines range of 78-97 months) after finding, among other things, "that had Ms. Rodriguez been charged in state court with a similar offense, she would most likely not be faced with the specter of losing custody of her children by reason of a lengthy incarceration"); see also United States v. Wilkerson, 411 F3d 1, 10 (1st Cir. 2005) (remanding, post-Booker because the district court may have reached a different sentencing result under the advisory guidelines when it "repeatedly expressed [] concern about disparate treatment between federal and state court sentences in similar cases, but stated that guidelines did not permit him to take that disparity under account"); United States v. Lewis, 375 FSupp2d 1, 2 (D. Mass. 2005) (affirming reasonableness of sentence but expressly leaving open issue of whether state/federal sentencing disparity can be considered); United States v. Habbal, 2005 WL 2674999, *5 (E.D. Va. Oct. 17, 2005) (when defendant had partially satisfied the federal regulation concerning registration of a money transmitting business, but had failed to obtain the appropriate state license, "little purpose would be served by imposing a substantially harsher penalty [in federal court] than that allowed" by the state); United States v. Moreland, 366 FSupp2d 416, 423 (S.D. W.Va. 2005) (imposing a non-guidelines sentence inter alia because of the "vast disparities that can exist between the state and federal criminal system) (rev'd on other grounds); United States v. Biheiri, 356 FSupp2d 589 (E.D. Va. 2005) (noting "the obvious and well-publicized disparities in sentences imposed in the federal and state systems").

Congressional Intentions?

Courts that have given credence to the state-federal disparity argument have reasoned that that it is unlikely that Congress, having attempted to achieve sentencing uniformity within the federal system, would tolerate such vast disparity between the federal and state criminal justice systems. In addition, some courts have noted that the disparity between federal and state sentences, in effect, provides the police or prosecutors with the unfettered discretion to decide what punishment an individual should receive.

Other courts have sentenced defendants without consideration of the disparity, but have either approved of the consideration under appropriate circumstances or have expressly left open the issue. See, e.g., United States v. Wachowiak, 412 FSupp2d 958, 965 (E.D. Wis. 2006) (sentencing defendant without consideration of the disparity between state and federal child pornography sentences but stating that "in an appropriate case [the court] possessed the discretion to do so").1

On the other hand, some courts have held that consideration of state/federal sentencing disparities under §3553(a)(6) is not proper. These courts reason that federal and state authorities have concurrent jurisdiction over various offenses and may apply disparate punishments to similar conduct. Adjusting federal sentences to conform to those imposed by the states would, therefore, not serve the purposes of §3553(a)(6), but, rather, would create disparities within the federal system, which is what §3553(a)(6) is designed to discourage. In United States v. Clark, 434 F3d 684, 687 (4th Cir. 2006), the court, in reversing a sentence that apparently considered state/federal sentencing disparities, held "[t]he sole concern of §3553(a)(6) is with sentencing disparities among federal defendants . . . . The guidelines [seek] to avoid only the unwarranted disparities that exist[] in the federal criminal justice system, that system for which the guidelines are governing law."

Other circuits have taken a similar view. See e.g. United States v. Jeremiah, 446 F3d 805, 808 (8th Cir. 2006) ("Unwarranted sentencing disparities among federal defendants remains the only consideration under §3533(a)(6) - both before and after Booker"); United States v. Branson, 2006 WL 2474864, *3 (10th Cir. Aug. 29, 2006) (imposition of a sentence for possession of child pornography not unreasonable even if federal sentence was longer than that which would have been imposed in state court because unwarranted sentencing disparities among federal defendants is the only proper consideration under the statutory sentencing factors); United States v. Santiago, 2005 WL 3542443 (D. Conn. Dec. 8, 2005) ("if the federal courts sought to reduce disparity in sentencing with the local state courts, then sentencing disparity within the federal system would be increased").

Conclusion

Given this - for lack of a better word - disparity in the approach of federal courts to this issue, counsel should determine whether the §3553(a)(6) "unwarranted sentencing disparities" argument is available in the circuit where the prosecution is taking place. However, even if that circuit has held that consideration of state/federal sentencing disparities is not a proper under §3553(a)(6), counsel may still argue that consideration of the disparities is proper under §3553(a) as a whole. See generally, United States v. Crosby, 397 F3d 103 (2d Cir. 2006) (reasonableness review under §3553(a) "is inherently a concept of flexible meaning, generally lacking precise boundaries").

Under this theory, it is proper for a court to resort to state law for additional insight as to what would constitute a reasonable sentence under the circumstances, wholly without regard for whether the sentence imposed would result in a sentencing disparity.

Michael J. Gilbert is a partner at Dechert LLP, focusing on securities enforcement defense, and white-collar litigation. Matthew J. Lang is an associate at the firm specializing in securities litigation and white-collar litigation.

Endnotes:

1. The Second Circuit has not ruled on the issue of whether state/federal sentencing disparities is an appropriate consideration under §3553(a) and specifically left open the question in United States v. McDaniel, No. 05-CR-1994 (2d Cir. April 6, 2006) ("Even assuming that McDaniel is correct and the District Court could have considered this type of disparity in its reasonableness analysis, we conclude that his sentence is reasonable in light of the other factors listed in 18 USC §3553(a)"). However, pre- and post-Booker, the Second Circuit has held that "the unwanted disparities that informed [the] statutory concern were not those between any two discrete cases or even between two defendants in the same case. Rather Congress' 'objective was to eliminate unwarranted disparities nationwide.'" United States v. Toohey, 132 FedAppx 883, 886 (2d Cir. 2005) (quoting United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 2005) (emphasis added)).