Metropolitan News-Enterprise

Monday, June 4, 2001

Page 3

Ninth Circuit Limits Departures From Guidelines Based on Sentencing Disparity

By a MetNews Staff Writer

A federal judge may not depart from the Sentencing Guidelines to avert a disparity between the sentences handed to co-defendants, unless they are being sentenced for the same crime, the Ninth U.S. Circuit Court of Appeals ruled Friday. 

The panel sent the case of Alex Caperna back to U.S. District Judge Thomas Zilly of the Western District of Washington for resentencing. 

Caperna was sentenced to three years in prison on a charge of interstate or international transportation in aid of racketeering. The sentence resulted from an agreement in which Caperna and his co-defendants agreed to plead guilty to various charges arising out of a marijuana importing operation. 

One co-defendant pled guilty to the same charge as Caperna and got a five-year sentence. The other pled guilty to conspiracy to import and distribute marijuana and was sentenced to four years. 

Caperna, who was originally charged with conspiracy to import marijuana with intent to distribute and with attempted possession of marijuana, admitted playing a small role in the operation—securing a stash house for a shipment of marijuana and hiring a driver to take the shipment from the off-load site to the safe house. 

The original charges carried a 10-year mandatory sentence because the quantity of marijuana involved was alleged to exceed 1,000 kg. 

At sentencing, Zilly calculated the applicable guidelines range at 57 to 71 months, but granted departure on the ground that a term within that range would create a disparity between Caperna’s sentence and those of the co-defendants, considering the extent of his culpability.

The government appealed, arguing that since one of the co-defendants was convicted of a different crime, the disparity was not a basis for departure. The defense responded that the departure was within the judge’s authority, and that there were other adequate grounds for departure as well. 

Trott acknowledged that under Ninth Circuit precedent, sentence disparity among co-defendants is a ground for departure. But he agreed with prosecutors that this does not apply when the co-defendants were convicted of different crimes. 

The jurist cited United States v. Banuelos-Rodriguez, 215 F.3d 969 (Ninth Cir. 2000), an en banc decision overturning a departure based on disparities among charging policies of federal prosecutors in different districts. The court reasoned that departure was not appropriate to redress disparities in sentencing of defendants who had committed different offenses, even if they involved similar conduct. 

“We adhere to Banuelos-Rodriguez’ teaching, and confirm that a district court may not depart from an applicable guidelines range on the basis of co-defenant sentence disparity unless the co-defendant used as a barometer for judging the disparity was convicted of the same offense as the defendant,” Trott wrote. 

Trott rejected, however, the prosecution’s urging that the court adopt the Tenth Circuit’s view that disparity is never a reason for departure if it results from a plea bargain. This is a determination best left to the discretion of the sentencing judge, the appellate jurist said. 

On remand, therefore, the district judge may grant a departure based solely on the disparity between the guidelines sentence and that imposed on the co-defendant who pled guilty to the same offense, Trott said. 

Zilly may also consider other grounds for departure, including the fact that Caperna may have been pressured into pleading because the deal was “wired”—contingent on all defendants pleading guilty—and the defendant’s record of community service, the appellate judge said.