Second Circuit Reverses Sentence as Procedurally Improper Due to Improper Reliance on State-Federal Disparities

The vast majority of street-level drug sellers in New York are usually prosecuted in state court, where first-time offenders often receive far more lenient treatment than in federal court, and where there is no disparity between crack and cocaine sentences.  This fact motivated a district judge in United States v. Williams, 05-4416-cr, 2008 WL 1836371, (2d Cir. April 25, 2008), to grant a significant below-Guidelines sentence to a defendant who had pled guilty to crack distribution.  Although the Guidelines called for a sentence between 70 and 87 months, she imposed a sentence of 36 months, so that it was "comparable to the sentence Williams would have received had his case not been turned over to federal prosecutors."  Significantly, in estimating the "comparable state sentence," the Court relied on the defense attorney's representations regarding the plea bargaining policy of the Westchester County's D.A.'s office and his own experience.  

The Second Circuit reversed, holding that "[t]he displacement of the Sentencing Guidelines at the threshold, because of a 'personal policy' to conform the sentence to one that would have been imposed in a proceeding in the City of Yonkers, cannot be reconciled with 18 U.S.C. § 3553(a)."  In particular, the Court noted that while § 3553(a)(6) "requires the district court to consider 'the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[,]'" Congress adopted § 3553(a)(6) 'to eliminate unwarranted disparities nationwide'" (my emphasis).  The  Court also expressed concern at the reliance on "the plea bargaining policy of one of sixty-two independently elected district attorneys, rather than the uniform sentencing scheme prescribed by the New York Legislature" and the propriety of relying on hearsay representations regarding the plea and sentence that would have been obtained in state court.

This decision, therefore, would not preclude a district court from relying on a more systematic nationwide analysis of sentences meted out in state courts for similar conduct (see, e.g., Judge Weinstein's comprehensive analysis of state court sentences in child pornography possession cases in United States v,. Polizzi, 2008 WL 877164 (E.D.N.Y. April 1,2008), to be discussed by this blog shortly).  The decision also ignores the selective prosecution issue at the heart of the district court's sentence.

This may, however, be a pyrrhic loss for Williams, and his co-defendant, Schuler.  (The latter's sentence was also reversed, because his sentencing judge - while permitted to take into account co-defendant sentencing disparity - hewed too closely to Williams' sentence "without making his own assessment of an appropriate sentence.")  Recognizing that what motivated Williams' sentencing judge was her desire to ameliorate the crack-cocaine sentencing disparity (she quite rightly called it "baloney"), the Court observed that on remand, the sentencing judge "will have the discretion to consider the crack/cocaine disparity, which has now been narrowed by the Sentencing Commission, in imposing sentence."  In other words, the Court reiterated once again, see here, that a sentencing court may grant more than the two-point guideline reduction authorized under the Guidelines to address the crack-cocaine sentencing disparity.