Case o' The Week: Not "Must," But Maybe "Can:" State/Federal Sentencing Disparity as Variance Basis, Ringgold

Must a district court consider the huge disparity between the maximum state exposure, and the federal guideline range, for identical conduct? No, explains Judge Thomas in United States v. Arnold Ringgold,__ F.3d __, No. 06-10492, 2009 WL 1927597 (9th Cir. July 7, 2009), decision available here.

But, carefully left open is the question of whether a federal court has the discretion to vary based on this disparity.

Players: Hard-fought case by our own N.D. Cal. AFPD Jerome Matthews. Decision by Judge Thomas.

Facts: Ringgold pleaded to felon-in-possession, a § 922(g)(1) charge. Because of (minor) state pot-sale priors, his guidelines skyrocketed up to 92-115 months (with acceptance). Id. at *1.

At sentencing, AFPD Matthews argued for a sixty-month sentence given the disparity between the federal guideline range and the maximum three-year state sentence for this crime. Id. The district court (former district court Judge Jenkins, now on the California Court of Appeal) refused to vary from the guidelines under Booker and sentenced Ringgold to ninety-two months. Id. at *1.

Issue(s): “This appeal concerns the question whether, after . . . Booker . . ., a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.” Id. at *1.

Held: “Under the circumstances presented by this case, we hold that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity.” Id.

Of Note: Judge Thomas makes a central assumption early in the Ringgold decision: that § 3553's goal of avoiding “unwarranted sentence disparities” really means avoiding federal sentence disparities. Id. at *3. Of course, the statute itself doesn’t say that, so he then devotes several pages of the decision to bolstering that “federal” assumption. Id. at *3-*4.

The gist of the Court’s argument is that, by forcing federal sentencing courts to consider state sentences, there would be a greater federal sentence disparity because of differences among the states. Id. at *3. From a policy perspective, though, it is fair to ask whether there really is that much sentencing disparity among the states? If every state would sentence a felon-in-possession to a third of the federal guideline range, then taking that fact into account creates no new federal disparity.

The Sentencing Reform Act was adopted back when federal cases were truly federal, instead of state prosecutions on steroids. Now that AUSAs are just D.A.s in nicer suits, see article here, seems that the state-disparity angle is a fair approach to the new “federalization” of state street crime.

How to Use: Ringgold is about as good as one can get, while still losing the case. An important holding of the decision is that it is not an abuse of discretion for a district court to decline to consider the federal/state sentencing disparity when undertaking the § 3553(a) analysis. A more important caveat, however, is that Judge Thomas carefully explains that the Court is not addressing whether a district court can rely on that disparity at sentencing. Id. at *4 (“Because the district court did not rely on the federal-state sentencing disparity in this case, we need not address the government’s argument that a district court may never consider, in the course of its § 3553(a) analysis, the sentence a defendant would receive if convicted of similar conduct in state court.”)

In fact, Judge Thomas adds a helpful cite suggesting that in unusual cases the federal/state sentencing disparity would be a factor to consider in arriving at a reasonable sentence. Id. (quoting United States v. Clark, 434 F.3d 684, 687-88 (4th Cir. 2006)).

In sum, the federal/state sentencing disparity argument is still Booker fair game, and remains a viable sentencing argument.

For Further Reading: Does anyone care about the erosion of federalism by the federalization of state offenses? Massachusetts District Judge Nancy Gertner (right) does. For Professor Berman’s report on Judge Gertner’s fascinating order on the federal prosecution of a state offense, visit his sentencing blog here. And for an even more candid insight on the federalization of minor state offenses, enjoy Judge Gertner’s blog at Slate, here.

Image of the Hon. Judge Sidney Thomas from http://www.law.asu.edu/?id=1163. Image of the Hon. Judge Nancy Gertner from http://www.boston.com/news/local/articles/2005/01/13/2_boston_jurists_hail_return_of_discretion/


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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