PROTECT
Act Case Analysis
March
29, 2006
For
now, the court’s decision in Martinez preserves the status quo — district
courts may grant downward departures to avoid nationwide discrepancy, or they
may choose not to. Such departures are neither required, nor prohibited.
In
Wisconsin, district courts have done both. One of the cases cited by Martinez
as authority that a downward departure is justified came from the Eastern District
of Wisconsin, U.S. v. Galvez-Barrios, 355 F.Supp.2d 958 (E.D.Wis.2005).
Should
the issue be presented to the court, the precedent most on point, and containing
some favorable language for both the government and defendant, is U.S. v. Boscarino,
437 F.3d 634 (7th Cir. 2006).
In
Boscarino, the defendant argued that his sentence was unreasonably high compared
to that of a co-conspirator who cooperated with the government. The court held,
however, “a sentencing difference is not a forbidden ‘disparity’
if it is justified by legitimate considerations, such as rewards for cooperation
(emphasis in original).” Id., at 638.
Presumably,
the court would show deference to Congress’ determination that overwhelmed
court dockets in some districts is a “legitimate” consideration, and
that could justify the disparity.
However,
there is language in Boscarino that does support the interpretation in Galvez-Barrios:
“the kind of ‘disparity’ with which sec. 3553(a)(6) is concerned
is an unjustified difference across judges (or districts) rather than among defendants
to a single case.”
The absence
of a fast-track procedure in one district is clearly a difference across districts
that the Guidelines are supposed to avoid. The questions are whether that is an
“unjustified difference,” and how much deference the court should give
to Congress’ decision to deliberately create that difference.
The
court in Boscarino also wrote: “why should one culprit receive a lower sentence
than some otherwise-similar offender, just because the first is ‘lucky’
enough to have a confederate turn state’s evidence? Yet that is Boscarino’s
position, which has neither law nor logic to commend it.”
But,
paraphrasing the quote to “why should one culprit receive a lower sentence
than some otherwise-similar offender, just because the first is ‘lucky’
enough to have been arrested in Arizona instead of Wisconsin?” the question
ceases to be illogical.
Unfortunately
for defendants, although the question is a logical one to ask, it has an answer:
Congressional intent to relieve court dockets in the Southwest overburdened by
illegal re-entry cases.
-
David Ziemer
Click
here for Main Story.
David
Ziemer can be reached by email.
