Use Nationwide Data to Establish Unwarranted Disparity

Section 3553(a)(6) of Title 18 of the U.S. Code provides that judges must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” when imposing sentence.  It is important for counsel to be aware that establishing unwarranted disparity among similarly situated defendants is not simply an exercise in comparing sentences of co-defendants or others within the district.  Rather, courts consistently have held that unwarranted disparities are to be established by a comparison to similarly situated defendants nationwide.  See, e.g.United States v. Reyes-Santiago, 804 F.3d 453, 466 (1st Cir. 2015) (holding that “this provision is primarily aimed at national disparities, rather than those between co-defendants”) (internal quotation marks and citations omitted); United States v. Franklin, 785 F.3d 1365, 1371 (10th Cir. 2015) (“The purpose of the sentencing guidelines is to eliminate disparities among sentences nationwide.”) (Internal quotation marks and citations omitted); United States v. Watkins, 691 F.3d 841, 853 (6th Cir. 2012) (“explaining that § 3553(a)(6) refers to national disparities among the many defendants with similar criminal backgrounds convicted of similar criminal conduct, not to disparities between one individual’s sentence and another individual’s sentence”) (internal quotation marks and citations omitted); United States v. Halliday, 672 F.3d 462, 473 (7th Cir. 2012) (holding Guidelines were intended to establish national uniformity); United States v. Stewart, 590 F.3d 93, 140 (2d Cir. 2009) (“The Guidelines were intended to eliminate national disparity, but [w]e do not, as a general matter, object to district courts’ consideration of similarities and differences among co-defendants when imposing a sentence.”) (Internal quotation marks and citations omitted); United States v. Carey, 589 F.3d 187, 196 (5th Cir. 2009) (rejecting appellant’s argument that his sentence established a “national disparity” where there were “analogous sentences in other courts”) (citations omitted).
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Mark Allenbaugh serves as President and Chief Research Officer of, Inc.. He is a former staff attorney for the U.S. Sentencing Commission, and a co-editor of "Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice" (2nd ed., Foundation Press, 2002). Mark is widely regarded as a national expert in Federal sentencing guidelines, analysis and strategy.

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