We don’t often delve into the criminal law decisions, particularly sentencing, but I wanted to shout out to ex-Pierce Atwood-iste Tina Schneider, who landed a victory in U.S. v. Cotto-Negrón, No. 14-1670.
Basically, the trial judge, (Judge Fusté) gave a two level enhancement when he didn’t give the same enhancement to the other defendants in the exact same situation. The Court skirted the broader issue whether or when that’s allowed as a general matter, by ruling that here it was not here because the ground the trial judge articulated for the deviation was not supported in the record. (The two level enhancement was for inflicting bodily injury on the victim. The other defendants didn’t get the enhancement, and the record was the same as to each defendants’ conduct. The trial judge made statements indicating that he thought that the record was not the same as to each defendant.)
So first, congratulations Tina.
So here we have a situation where if a trial judge says “I am giving you an offense level of X” to Defendant #1, adding up levels and omitting one for that defendant, then to Defendant #2 says “I am giving you an offense level of X+2,” adding levels the judge could have added to Defendant #1 and didn’t. If the trial judge says nothing in sentencing #2 about the differential, or even says something like, “oops I made a mistake with Defendant #1, I should have given him +2 also,” it’s unclear as to whether Defendant #2 is out of luck. But if the trial judge does provide an explanation for the differential, and it’s not based on something in the record, it’s not allowed.
Consistency in sentencing is an everlasting conundrum. On the one hand, you want similarly situated defendants treated similarly. On the other hand, we need to recognize that trial courts should be given discretion because sentencing is a very individual exercise.
If you are wondering whether this was a wholly Pyrrhic victory since this was a procedural issue, or whether the broader issue may come up after the remand, Judge Fusté retired last June, so a new judge will need to do the re-sentencing.