Judge Adelman on what constitutes unwarranted disparity
Sentencing Hall of Famer Judge Lynn Adelman issued an an effective little opinion yesterday in US v. McGee, No. 06-CR-140 (E.D. Wis. Mar. 19, 2007) (available for download below), which concludes with this discussion of unwarranted disparity under the Booker regime:
There is a tendency to equate compliance with the § 3553(a)(6) admonition to avoid unwarranted disparity with fealty to the guidelines. See generally United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir. 2006) (quoting Boscarino, 437 F.3d at 638) (stating that “in most cases ‘disparities are at their ebb when the Guidelines are followed'”). However, courts must be careful, post-Booker, not to reimpose mandatory or near mandatory guidelines under the guise of avoiding disparity. More importantly, § 3553(a)(6) refers only to unwarranted disparity. In my view, a disparity between the sentences of two similarly situated defendants will, under the Booker advisory guideline regime, be unwarranted only if the judge fails to provide sufficient reasons for the difference, grounded in the § 3553(a) factors. See Webster’s New College Dictionary 1211 (1995) (defining “unwarranted” as “having no justification; groundless”). Variance from the guidelines alone cannot be equated with unwarranted disparity.