Friday, May 2nd, 2008

State of Disagreement

United States v. Williams, No. 05-4416-cr (2d Cir. April 25, 2008) (Calabresi, Cabranes, CJJ, Korman, DJ)

Here, the court vacated two below-guideline sentences that seemed to have been imposed largely in order to minimize a perceived disparity between the sentence recommended by the guidelines and the sentence that would have been meted out in state court.

Williams and Shuler sold crack together in Yonkers. They were first charged in state court, then the case was transferred to federal court. For reasons that are not clear, they were separately charged and their cases were handled by different district judges.

Williams was sentenced first, by Judge McMahon. He faced a 70 to 87 month range (now it would be 57 to 70 due to the crack guideline amendments) but the judge, persuaded by Williams’ attorney that the plea offer from Westchester County D.A.’s office’s would have been between 12 and 66 months, sentenced him to 36 months’ imprisonment. She characterized the disparity between the guideline range and the likely state sentence was “unwarranted.” Later, Judge Brieant sentenced Shuler. Although the judge had intended to impose a 70-month sentence, he instead gave him 40 months, to avoid a disparity with Williams.

The government appealed, and won. Focusing largely Williams, the circuit found the 36-month sentence to be procedurally unreasonable. First, the district judge erred by not treating the guidelines as a “starting point,” and by instead deciding to rely her “personal policy” of conforming to what she viewed as the likely state court sentence. The judge focused on the wrong disparity – § 3553(a)(6) is intended to eliminate disparity on a “national,” not a local, level.

The appellate court was also concerned with basing a federal sentence on the pleading policies of a particular district attorney, since New York has sixty-two of them. Such a practice could easily increase, rather than decrease, sentencing disparities within the federal districts in New York State. Finally, the circuit was concerned about the district court’s reliance on hearsay representations as to what would have happened in state court.

The court also vacated Shuler’s sentence, “if only because” it vacated Williams’. The court identified some other problems, however. While it agreed with Judge Brieant that avoiding disparities among “persons who are engaged in the same misconduct together” is permissible, the court was concerned that he relied too heavily on Williams’ sentence “without making his own assessment of an appropriate sentence.”

The court’s parting shot was to question the “assignment practice” that created Judge Briant’s “predicament.” “[I]t seems difficult on any score to justify the assignment of the Williams and Shuler cases to different judges.” The court suggested that, on remand, one judge take both cases.

On a brighter note, the court speculated that the “real reason” that Judge McMahon imposed such a low sentence was her “understandable desire to ameliorate” the federal crack-v-powder sentencing disparity. It reminded her that she has the discretion to do so on remand.

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