Saturday, October 13, 2007

Steal This Footnote

United States v. Johnson, No. 05-3811-cr (2d Cir. October 10, 2007) (Meskill, Cabranes, Wesley, CJJ)

This is pretty much a case about nothing. The only real nugget is in footnote 4.

Johnson appealed his 120-month gun sentence - the statutory maximum - on several grounds. As is often true, his case had begun in state court, but was later transferred to federal court. Johnson pointed out that had the state prosecution gone forward, he could not have received more than seven years’ imprisonment. On appeal he argued that the district court was required to sentence him so as to take into account (1) the disparity between his sentence and his co-defendant’s, a claim that the court has already rejected, and (2) the disparity between his federal sentence and the sentence he would have received in the state court.

The court rejected this second claim as well, holding that a district court is not “required” to consider potential federal/state sentencing disparities. However, footnote 4 expressly leaves open the more important question, which is whether such consideration is permitted.

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