Disparity Between Federal Defendants, Not Federal and State Defendants, Is Target of 3553(a)(6)

US v. Clark: Clark was convicted of conspiracy to distribute crack in the Eastern District of Virginia. Her advisory Guideline range was 46 to 57 months. At sentencing, the district court asked the parties to brief the issue of what sentence Clark would be facing in Virginia state court for the same offense. The Government argued for a range of 36 to 49 months. Clark agreed, but noted that all but 6 to 12 months of that time would likely be suspended. After hearing unsworn testimony from the probation officer as to her conversations with a state PO about the potential Virginia sentence, the district court sentenced Clark to 8 months in prison. The Government appealed and the Fourth Circuit reversed, in three separate opinions.

Judge Luttig wrote the court's opinion. He began by noting that it was difficult to tell from the district court's statements at sentencing whether it (1) considered the need to avoid unwarranted sentencing disparities at all, (2) whether it considered that factor but the proper comparison was with state sentences, rather than other federal sentences, or (3) whether it considered the need to avoid disparity among federal sentences but felt that need was trumpted by a need to avoid disparity between federal and state sentences. Regardless, Luttig says, the district court erred in applying 18 USC 3553(a)(6). First, 3553(a)(6) clearly requires the consideration of sentencing disparity. Second, the disparity at issue is among federal sentences: "The sole concern of section 3553(a)(6) is with sentencing disparities among federal defendants." (emphasis in original). For example, tying federal sentences to state equivalents would end up creating disparity between similarly situated federal defendants based on the geography of their conviction. Creation of such disparity is unreasonable and, thus, so is Clark's sentence. Luttig did admit that there will be some "unusual cases" where state sentencing factors may influence a sentence that is reasonable under 3553(a) but that this case isn't one of them.

Judge Motz concurred in the judgment and discussed what those "unusual cases" might be. Specifically, Motz would limit them to cases of either assimilative jurisdiction, as in 18 USC 13(a), or where the federal offense is defined with some relation to state law, as in 18 USC 1960(b)(1)(A). That is because Congress itself has decided to have the courts look to state law in those cases.

Judge King also concurred in the judgment and agreed "with what Judge Motz has written." However, King leaves open the possibility that the district court could impose the same sentence on Clark after a thorough analysis of all the 3553(a) factors.

Doug Berman over at Sentencing Law & Policy has these thoughts on Clark.