Review of Co-Defendant Sentencing Disparities by the Seventh Circuit: Two Divergent Lines of Cases

Alison Siegler

In the past few years, the Supreme Court and every federal Circuit Court of Appeals have recognized that 18 U.S.C. § 3553(a) grants judges the discretion to consider co-defendant disparities at sentencing. In United States v. Statham, 581 F.3d 548, 556 (7th Cir. 2009), the Seventh Circuit reached the same conclusion, stating unequivocally that it is “open in all cases to an argument that a defendant’s sentence is unreasonable because of a disparity with the sentence of a co-defendant.” Nonetheless, the Seventh Circuit has issued several recent decisions in which it has, without explanation, ignored Statham and held that a district court cannot consider co-defendant disparities under § 3553(a).3 In the interest of stare decisis, the Seventh Circuit should clarify that district courts are permitted to consider co-defendant disparities under § 3553(a).

The issue of co-defendant disparities typically arises when two or more co-defendants in a case are facing the identical sentencing range under the United States Sentencing Guidelines but have differing culpability or played very different roles in the offense. For example, imagine a bank robbery case in which Defendant Driver drove to the bank with Defendant Robber as his passenger, and then Defendant Robber entered the bank, held the teller at gunpoint, and ran away on foot with $12,000. Assuming neither defendant had any criminal history, they would both be facing a guidelines range of 78–97 months.4 The sentencing judge might grant Driver a minor role reduction under U.S.S.G. §3B1.2 to differentiate between his role and that of Robber. Under Supreme Court precedent and Statham, the judge also has the authority to vary from the guidelines range under § 3553(a), either by granting Driver a below-range sentence or Robber an above-range sentence, in order to ensure that their respective sentences track their respective culpabilities and roles.