Friday, May 05, 2006

Co-Defendant Disparity as Basis for Non-Guidelines Sentence Lives Another Day

United States v. Flores, Docket No. 05-2385-cr (2d Cir. May 3, 2006) (Kearse, Raggi, Restani (by desig'n)): This opinion affirms Flores's conviction for conspiring to import heroin and his 210-month sentence, discussing along the way (1) the standards for tolling the statute of limitations under 18 U.S.C. § 3290 based on the defendant's "fl[ight] from justice"; (2) whether testimony by cooperating witnesses alone, without independent corroboration, is sufficient to convict the defendant; and (3) whether the 210-month sentence is reasonable given that Flores's brother Chepe, who appeared to be equally culpable, received only a 120-month sentence (imposed by a different judge). The bulk of the opinion is spent on the tolling question, Op. 5-16, but this Blog will focus on the sentencing issue.

Flores claims that his 210-month sentence is unreasonable because of its disparity with his brother's 120-month sentence. This is so even though Flores actually faced a Guidelines range of 262 to 327 months, and the district judge imposed a non-Guidelines sentence (of 210 months) because of its concern about disparity with Chepe's sentence. Flores's claim on appeal, therefore, was that the district judge did not sufficiently consider the disparity and did not impose a sufficiently low sentence to reduce that disparity.

The Circuit rejects this argument, pointing out that even assuming that co-defendant disparity (as opposed to nationwide disparity) is an appropriate consideration under § 3553(a)(6), "the weight to be given such disparities, like the weight to be given any § 3553(a) factor, 'is a matter firmly committed to the discretion of the sentencing judge and is beyond our [appellate] review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.'" Op. 24 (citing Fernandez (click here for our discussion of that case)). Again relying on Fernandez, the Court emphasizes that on reasonableness review, which is "akin to [an] 'abuse of discretion'" standard, it will not "substitut[e] its judgment for that of the sentencing judge." Op. 24.

And in upholding the sentence, Judge Raggi signals some discomfort with the district judge's decision even to reduce the sentence to 210 months based on Chepe's sentence, twice noting that because the Government did not cross appeal, the Court has no occasion to rule on the propriety of the reduction. Op. 23 & 25. Nonetheless, Judge Raggi notes that while the Circuit has "not ruled, post-Booker, as to whether [§ 3553(a)(6)] permits district courts to consider sentencing disparities between co-defendants in the same case," Op. 22-23 (citing Fernandez), "this Court [] recognized [pre-Booker] that Congress's primary concern in enacting § 3553(a)(6) was to minimize sentencing disparities nationwide." Op. 22. Judge Raggi further points out that the district judge here would have been well warranted in not reducing Flores's sentence at all because he was not similarly situated to his brother. While Chepe pled guilty and showed the existence of extraordinary family circumstances at sentencing, Flores fled from justice, went to trial and asserted his innocence, and did not show that his incarceration would exceptionally affect his family members. Op. 24-25.

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