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Will Judge Compare Sentences of Co Defendants in a Federal Criminal Case

March 21, 2024 Uncategorized

Will Judge Compare Sentences of Co-Defendants in a Federal Criminal Case?

When multiple defendants are convicted of participating in the same federal crime, a common question is whether the judge will compare their sentences and try to achieve uniformity. The short answer is that while judges often aim for proportionality between co-defendants, the sentences will not necessarily be identical.

Federal judges have significant discretion in sentencing. The sentences they impose are influenced by various factors like the defendants’ criminal histories, conduct during the offense, acceptance of responsibility, and assistance to prosecutors. As a result, even co-defendants convicted of similar conduct may receive different sentences.

The Federal Sentencing Process

For most federal crimes, the United States Sentencing Guidelines provide recommended sentencing ranges based on the defendant’s offense conduct and criminal history. However, after the Supreme Court’s decision in United States v. Booker in 2005, the Guidelines are only advisory. While judges must consider them, they have discretion to impose sentences above or below the recommended range.

When sentencing co-defendants, the judge will calculate individual Guidelines ranges based on factors like:

  • The defendant’s role in the offense
  • The amount of loss or harm caused
  • Whether a weapon was involved
  • The defendant’s prior record

Because these factors may differ between co-defendants, they may end up with different Guidelines ranges. The judge will then weigh the other sentencing factors in 18 U.S.C. § 3553(a) to determine the appropriate sentence for each defendant, whether within or outside the Guidelines range.

Achieving Uniformity in Co-Defendant Sentencing

While not required, judges often aim for uniformity and proportionality between co-defendants. As stated in United States v. Wills, “disparity in sentences between codefendants can exist for valid reasons, such as differences in criminal histories, the offenses of conviction, or one coconspirator’s decision to plead guilty and cooperate with the government.” However, major disparities may be unreasonable where the defendants are similarly situated.

In comparing co-defendant sentences, considerations for the judge include:

  • The defendants’ relative culpability and participation in the offense
  • Whether one defendant cooperated with prosecutors or testified against the others
  • Disparities accounted for by the Guidelines based on criminal history or acceptance of responsibility
  • Statutory mandatory minimum sentences that apply to some defendants but not others

While the sentences do not have to be identical, judges try to avoid unjustified disparities and ensure the punishment fits the crime.

Departures and Variances

Judges can depart from the Guidelines range through a “departure” or a “variance.” A departure is based on circumstances contemplated by the Guidelines themselves. In contrast, a variance relies on the broader Section 3553(a) sentencing factors.

When sentencing co-defendants, whether through a departure or a variance, the judge should explain why one defendant is receiving a higher or lower sentence than the others. Significant differences in criminal history or acceptance of responsibility may warrant disparity. But unjustified discrepancies could lead to reversal on appeal under Wills.

Appellate Review of Co-Defendant Sentencing Disparities

The appellate court reviews the substantive reasonableness of a sentence under an abuse of discretion standard. It is presumed reasonable if within the Guidelines range. However, a sentence may be unreasonable if it creates unwarranted disparities between co-defendants under 18 U.S.C. § 3553(a)(6).

In United States v. Lazenby, the Seventh Circuit upheld a sentencing disparity between co-defendants where one provided substantial assistance to prosecutors. And in United States v. Boscarino, the Second Circuit upheld disparate sentences based on differences in criminal history and the applicability of a career offender enhancement.

But appellate courts have also remanded cases involving major discrepancies not supported by the record. The key is for the sentencing judge to explain why any disparities are warranted under § 3553(a).

Notable Cases Comparing Co-Defendant Sentences

Here are some notable federal cases involving claims of unreasonable sentencing disparities among co-defendants:

  • United States v. Wills (11th Cir. 2006) – Upheld disparity where one co-defendant cooperated with prosecutors.
  • United States v. Lazenby (7th Cir. 2014) – Upheld disparity based on one co-defendant providing substantial assistance.
  • United States v. Boscarino (2d Cir. 2006) – Upheld disparity attributed to criminal history and career offender status.
  • United States v. Carter (6th Cir. 2010) – Vacated sentence that was over 4 times longer than co-defendant’s sentence.

While judges have significant discretion in sentencing, appellate courts will look closely at major disparities between co-defendants to ensure they are justified under the § 3553(a) factors.


In sentencing multiple defendants convicted in the same federal case, the judge will aim to avoid unwarranted disparities. However, co-defendant sentences may differ based on individualized factors like role in the offense, criminal history, and cooperation with prosecutors. Appellate courts review sentencing disparities for an abuse of discretion under § 3553(a).

Will a Judge Compare Sentences of Co-Defendants in a Federal Criminal Case?

When multiple defendants are charged for the same federal crime, they often receive different sentences based on their particular role, criminal history, and other factors. Judges have broad discretion in federal sentencing, so co-defendants rarely get identical punishment. However, judges do consider disparities between co-defendants and may adjust sentences to avoid unfairness.

Federal judges look at each defendant’s case individually but also factor in nationwide sentencing data for similar cases. They aim to balance the goals of uniformity and proportionality in punishment. Appellate courts can overturn sentences that create unjustified disparities. Defense lawyers can argue for leniency by comparing their client’s minor role or clean record to more culpable co-defendants.

Federal Sentencing Process

Federal judges go through the following steps when imposing sentences:

  1. Calculate the advisory sentencing range under the U.S. Sentencing Guidelines based on the offense level and defendant’s criminal history.
  2. Consider any grounds for departing from the guidelines such as substantial assistance to prosecutors.
  3. Evaluate the statutory sentencing factors laid out in 18 U.S.C. § 3553(a).
  4. Impose a final sentence that is “sufficient but not greater than necessary” to achieve the goals of punishment, deterrence, and rehabilitation.

At each phase of this process, the judge can take co-defendants’ sentences into account to avoid unwarranted disparities. However, judges have significant flexibility, especially when weighing the Section 3553(a) factors.

18 U.S.C. § 3553(a) Factors

These factors include:

  • The nature and circumstances of the offense and the defendant’s history.
  • The kinds of sentences available.
  • The sentencing range under the guidelines.
  • The need to avoid unwarranted sentencing disparities.
  • The need for restitution to victims.

By explicitly directing judges to consider disparities, Congress signaled that co-defendants’ sentences are relevant. But judges do not have to eliminate justifiable differences in sentences either. So while they may compare co-defendants cases, it is just one consideration that can be outweighed by other factors.

Reasons Co-Defendants May Get Different Sentences

Judges may impose different sentences on co-defendants who committed the same crime based on factors like:

  • Role – Defendants who played a leadership or organizing role may get longer sentences than minimal participants or followers.
  • Criminal record – Those with more extensive histories get tougher sentences.
  • Acceptance of responsibility – Defendants who plead guilty and show remorse may get reduced sentences.
  • Assistance to prosecutors – Defendants who cooperate get lower sentences per 5K1.1 motions.
  • Sentencing manipulation – Prosecutors may structure pleas to reward cooperators.

At the same time, judges do not want to create unjustified disparities or the appearance of unfairness. For example, giving a drug courier a 20-year sentence and the kingpin responsible for flooding streets with drugs only a 10-year sentence would be unreasonable.

Appellate Review of Sentencing Disparities

The U.S. Supreme Court has said that federal appellate courts can consider sentencing disparities under 18 U.S.C. § 3742(a), which allows appeals for sentences “imposed in violation of law.”

In Pepper v. United States, the Court noted that allowing appeals of disparities is consistent with § 3553(a)(6)’s aim of reducing unwarranted disparities. However, sentences within the guidelines range are presumed reasonable. So large disparities are generally needed for a successful appeal.

In United States v. Lazenby, the Ninth Circuit upheld a sentencing disparity where one defendant got 33 months and another got 57 months. The judge reasonably based this on their differing roles and criminal histories.

But in United States v. Caperna, the Third Circuit overturned a sentencing disparity it found unjustified. Two defendants were both minimal participants but one received 24 months and the other 57 months.

Strategies for Defense Lawyers

When representing one of several co-defendants, federal defense lawyers can employ strategies like:

  • Contrasting their client’s minimal role to a co-defendant’s central role.
  • Noting their client’s clean record compared to others’ criminal histories.
  • Citing their client’s cooperation against others’ defiance.
  • Asking prosecutors to calibrate plea offers to avoid unwarranted disparities.
  • Urging judges to impose consistent sentences among similar co-defendants.

Skillful advocacy can result in lighter sentences for less culpable defendants compared to those who were driving forces behind the criminal activity.

The Bottom Line

Federal judges consider co-defendant disparity on a case-by-case basis when sentencing. Significant differences may be warranted by factors like criminal history and level of participation. Appellate courts review disparities but give trial judges wide latitude. Defense lawyers can argue for reduced sentences by contrasting their client favorably with more involved co-defendants.

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