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05-3164 WDAR
IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT
____________
UNITED STATES OF AMERICA Plaintiff-Appellee
v.
BRIAN FAYE JEREMIAH Defendant-Appellant
___________
APPEAL FROM THE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Hon. Robert T. Dawson, U.S. District Judge
No. 2:04CR20012-001
____________
BRIEF FOR APPELLANT AND ADDENDUM
____________
JOHN WESLEY HALL, JR.
1311 Broadway
Little Rock, Arkansas 72202-4843
501-371-9131 / fax 501-378-0888
Attorney for Appellant
i
SUMMARY AND REQUEST FOR ORAL ARGUMENT
Appellant pled guilty on March 1, 2004, to one count of use of transmitting
information about a minor in violation of 18 U.S.C. § 2425 for using the Internet to
communicate about a sex act with a police officer posing as a minor female.
Appellant was originally sentenced on June 29, 2004, and, at the sentencing,
he orally raised the constitutionality of the U.S. Sentencing Guidelines under Blakely
v. Washington, 542 U.S. 296 (June 24, 2004), so he could seek a sentence below the
guideline range. The District Court denied the motion and sentenced him to 27
months imprisonment, the minimum for his offense level. Appellant appealed, and
this court reversed on May 18, 2005 for resentencing under Booker. United States v.
Jeremiah, 135 Fed. Appx. 3 (8th Cir. May 18, 2005) (unpublished).
On resentencing, Appellant and the government stipulated that, if charged in
state court in Arkansas, Appellant would have received a sentence of five years
probation, 90 days incarceration, and a fine. Appellant moved the District Court to
depart downward and reduce the sentence based on the comparable state sentences
under 18 U.S.C. § 3553(a)(6). The District Court noted the “great disparity,” but
ultimately resentenced Appellant to the same sentence of 27 months.
This is a significant issue of first impression: Are state sentences relevant to
the reasonableness of federal sentences under § 3553(a)(6)? Thus, 15 minutes oral
argument is requested.
ii
TABLE OF CONTENTS
Summary of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The District Court’s failure to consider state court sentences for
the same conduct of similarly situated defendants in the county where
Appellant was arrested was unreasonable under Booker and 18 U.S.C.
§ 3553(a)(6) when the disparity is as great as it is here.. . . . . . . . . . . . . . . . 7
A. Standard of Review – Reasonableness of a Sentence under
18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. The Same Conduct in State Court Where Appellant Was
Arrested Would Have Resulted in Probation . . . . . . . . . . . . . . 9
C. 18 U.S.C. § 3553(a)(6) Permits State Sentences to be Con-
sidered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Federal-State Disparities are Relevant When State Sen-
tences Are Constitutionally Excessive . . . . . . . . . . . . . . . . . . 15
E. This Sentence is Unreasonable . . . . . . . . . . . . . . . . . . . . . . . . 16
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
iv
TABLE OF AUTHORITIES
CASES:
Blakely v. Washington, 542 U.S. 296 (2004) . . . . . . . . . . . . . . . . . . . . . . . i, v, 1, 4
Harmelin v. Michigan, 501 U.S. 957 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 15, 16
Moore v. State, 2005 WL 2138304 (Md. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Booker, 125 S.Ct. 738 (2005) . . . . . . . . . . . . i, iv, 1, 11, 12, 17, 18
United States v. Crume, 2005 WL 2124103 (8th Cir. 2005) . . . . . . . . . . . . . . . vii, 8
United States v. Helder, 05-3387 (8th Cir. pending) . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Jeremiah, 135 Fed. Appx. 3 (8th Cir. 2005) (unpublished) . i, 1, 4
United States v. Killgo, 397 F.3d 628 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . vii, 8
United States v. Lindquist, 2005 WL 2086738 (8th Cir. 2005) . . . . . . . . . . . . vii, 8
United States v. Mashek, 406 F.3d 1012 (8th Cir. 2005) . . . . . . . . . . . . . . . . . vii, 9
United States v. Snyder, 136 F.3d 65 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Wilkerson, 411 F.3d 1 (1st Cir. 2005) . . . . . . . . . . vii, 5, 11, 12, 13
United States v. Winters, 416 F.3d 856 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . vii, 7
U.S. CONSTITUTION:
Eighth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
v
FEDERAL STATUTES:
18 U.S.C. § 2425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, vi, 1, 4
18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
18 U.S.C. § 3553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
18 U.S.C. § 3553(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . i, vi, vii, 1, 2, 5, 6, 8, 10
18 U.S.C. § 3742(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATE LAW:
Ark. Code Ann. § 5-3-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ark. Code Ann. § 5-27-603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ark. Code Ann. § 16-88-101(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ark. Const., Amdt. 80, §§ 7(B) & 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
vi
JURISDICTIONAL STATEMENT
Appellant was charged by information in the Western District of Arkansas for
one count of use of interstate facilities to transmit information about a minor in
violation of 18 U.S.C. § 2425. The District Court had jurisdiction under 18 U.S.C.
§ 3231. Appellant was sentenced originally in 2004, and he preserved and appealed
a Blakely issue that the Guidelines were unconstitutional. This Court remanded on
May 18, 2005 after United States v. Booker, 125 S.Ct. 738 (2005).
At re-sentencing on July 29, 2005, Appellant moved for a downward depar-
ture based on 18 U.S.C. § 3553(a)(6) because the same conduct charged in Arkansas
state court in the same county where Appellant was arrested would have got Appel-
lant a sentence of five years probation, 90 days incarceration, and a fine. On
resentencing, the District Court seemed sympathetic to the argument, and the Court
noted the “great disparity” between the likely state sentence and federal sentence.
Nevertheless, the District Court re-sentenced Appellant to 27 months imprisonment
and 2 years supervised release, the same sentence as before.
This Court has jurisdiction under 28 U.S.C. § 1291 because it involves a final
judgment and commitment of the District Court. The sentence is also appealable
under 18 U.S.C. § 3742(a).
The Judgment was entered July 29, 2005, and the notice of appeal was filed
August 4, 2005. The appeal is timely and properly before this Court.
vii
ISSUES PRESENTED FOR REVIEW
(INCLUDING STANDARDS OF REVIEW)
STANDARDS OF REVIEW
The standard of review of a sentence post-Booker is “reasonableness in light
of [18 U.S.C.] § 3553(a). See United States v. Killgo, 397 F.3d 628, 630-31 & n. 4
(8th Cir. 2005) (explaining that part of Booker’s remedial command requires appel-
late courts to review the sentence for reasonableness).” United States v. Winters,
416 F.3d 856, 859 & n. 4 (8th Cir. Aug. 9, 2005). Accord: United States v. Crume,
2005 WL 2124103, *2 (8th Cir. Sept. 6, 2005); United States v. Lindquist, 2005 WL
2086738, *1 (8th Cir. Aug 31, 2005) (“The proper application of the sentencing
guidelines remains the critical starting point for the imposition of a reasonable
sentence based on the factors of 18 U.S.C. § 3553(a). United States v. Mashek, 406
F.3d 1012, 1016-17 & n. 4 (8th Cir. 2005).”
ISSUES
The District Court’s failure to consider state court sentences for the same
conduct of similarly situated defendants in the county where Appellant was arrested
was unreasonable under Booker and 18 U.S.C. § 3553(a)(6) when the disparity is as
great as it is here.
United States v. Wilkerson, 411 F.3d 1 (1st Cir. 2005)
United States v. Winters, 416 F.3d 856 (8th Cir. 2005)
18 U.S.C. § 3553(a)(6)
Note that the original sentencing was just five days after Blakely was de-1
cided.
1
STATEMENT OF THE CASE
This is an “Internet traveler case” that has already been before this Court and
remanded under Booker. United States v. Jeremiah, 135 Fed. Appx. 3 (8th Cir. May
18, 2005) (unpublished). The issue now is the reasonableness of Appellant’s sen-
tence under 18 U.S.C. § 3553(a)(6).
Appellant pled guilty on March 1, 2004, to one count in an information of use
of transmitting information about a minor in violation of 18 U.S.C. § 2425 for using
the Internet to communicate about a sex act with a police officer posing as a minor
female. Appellant was originally sentenced on June 29, 2004, and, at the sentencing,
he orally raised the constitutionality of the U.S. Sentencing Guidelines under Blakely
v. Washington, 542 U.S. 296 (June 24, 2004), so he could seek a sentence below the1
guideline range. The District Court denied the motion and sentenced Appellant to 27
months imprisonment, the minimum for his offense level.
Appellant appealed to this court, and this court reversed on May 18, 2005 for
resentencing under Booker. United States v. Jeremiah, supra.
On resentencing, Appellant moved for a downward departure based on pertin-
ent state sentences, and Appellant and the government stipulated that, if charged in
state court in Arkansas, Appellant would have received a sentence of five years
2
probation, 90 days incarceration, and a fine. Appellant moved the District Court to
depart downward and reduce the sentence based on the comparable state sentences
under 18 U.S.C. § 3553(a)(6).
The District Court noted the “great disparity,” but ultimately resentenced
Appellant to the same sentence of 27 months. Appellant appeals the sentence for
unreasonableness because of the federal-state disparity for the same conduct.
The nonexistence of an actual minor was not believed to be a defense in2
Appellant’s case. However, a defendant recently prevailed on that issue in the
Western District of Missouri at Springfield where a judgment of acquittal was enter-
ed by Judge Whipple. That case is on appeal to this court. United States v. Helder,
05-3387 (8th Cir. pending; Appellant’s (government’s) brief due October 7, 2005).
Since then, the highest court in Maryland, the Maryland Court Appeals, has
come to the same conclusion. Moore v. State, 2005 WL 2138304 (Md. September 7,
2005).
Two statutes covered this conduct at the time: Attempted rape [sex with a3
person underage and incapable of consent], Ark. Code Ann. § 5-3-201, and computer
child pornography, Ark. Code Ann. § 5-27-603 (the latter not requiring there be
child pornography involved; just computer chatting with a minor about sex makes
the offense).
See Stipulation ¶ 16(c), App. A9. In counsel’s and the state prosecutor’s4
experience, first offenders immediately confess to how stupid they were in doing
what they did.
3
STATEMENT OF THE FACTS
Appellant, living in Van Buren, Arkansas, in the Western District of Arkansas,
near Fort Smith, was caught up in an Internet chat room sting with the North Little
Rock Police in the Eastern District of Arkansas. He thought he was communicating
with a girl under 18, but he was in fact communicating with a police officer. A
meeting for sex was discussed and arranged, and Appellant knew that the alleged
minor was underage.2
Appellant drove from Van Buren to North Little Rock, and he was arrested
when he merely showed up, which completed the crime under Arkansas law. Upon3
his arrest, Appellant promptly confessed to the stupidity of his act. He was origi-4
Appellant also forfeited the pickup truck he was driving, potentially worth5
$20,000.
4
nally arrested by the North Little Rock Police Department, but he was indicted in the
Western District of Arkansas under the PROTECT Act which had a five year man-
datory minimum. His offense date was only a short time after the effective date of
the PROTECT Act.
Appellant was able to negotiate a plea to a non-PROTECT Act offense under
18 U.S.C. § 2425 that eliminated the five year mandatory minimum. Appellant
sought to be sentenced in accord with a Western District of Arkansas child porn case
that was sentenced near the time of his case, but was pre-PROTECT Act, to 15
months. Appellant was sentenced immediately after Blakely was decided (see note
1), and he raised the constitutionality of the Guidelines at his sentencing. Judge
Dawson denied the motion. The Guideline range was 27-33 months, and Judge
Dawson sentenced Appellant to 27 months.5
Because of the Blakely issue, Appellant appealed to this Court, which reversed
on May 18, 2005. United States v. Jeremiah, 135 Fed. Appx. 3 (8th Cir. May 18,
2005) (unpublished).
Re-sentencing was scheduled for July 29, 2005, and Appellant moved for a
downward departure based on comparable sentences in state court for the same
conduct since he was fortuitously charged in federal court instead of state court.
The stipulation included four gradations of the gravity of the state offense6
based on the defendant’s conduct. (App. A8) Appellant would have fallen in the
category with the least exposure, and, thus, would have been able to get a suspended
sentence on a guilty plea in the county where he was arrested and twice appeared in
state court.
Appellant’s counsel again wishes to thank Ms. Jenner, the Assistant U.S.7
Attorney on this case since the beginning, for her continued high professionalism
and cooperation in permitting these facts to be stipulated to rather than bring the
State prosecutor from Little Rock to Fort Smith to be a defense witness at resenten-
cing.
5
(App. A1) Appellant and the government stipulated to the facts Appellant could
prove as to what Appellant’s disposition would be on a guilty plea for the same
conduct in state court where he was arrested: five years probation, 90 days incar-6
ceration, a fine, DNA testing, and no possible expungement. (App. A3-A11)7
At re-sentencing, Appellant argued that 18 U.S.C. § 3553(a)(6) required that
state sentences be considered in determining a reasonable sentence under Booker and
as suggested in United States v. Wilkerson, 411 F.3d 1 (1st Cir. June 9, 2005) (per
Senior Judge Gibson of this Circuit). (App. A1 (motion) & A23-24 (sentencing))
The District Court was genuinely sympathetic to Appellant’s argument, but the
Court ultimately rejected the argument re-sentenced Appellant to 27 months with 2
years supervised release, the same sentence as before.
6
SUMMARY OF THE ARGUMENT
Appellant was first charged with this conduct in Arkansas state court. Instead,
he found himself charged in federal court. By stipulation, Appellant showed that if
his case remained in state court, he would have received a sentence of five years
probation, 90 days incarceration, and a fine.
Under 18 U.S.C. § 3553(a)(6), Appellant submits that the state court sentences
were a relevant factor for the District Court to consider in determining a reasonable
sentence for Appellant. The District Court, although sympathetic to the argument,
rejected it, and sentenced Appellant to 27 months imprisonment.
Appellant submits that his sentence is unreasonable under § 3553(a)(6), and
this Court should reverse and remand for resentencing.
7
ARGUMENT
THE DISTRICT COURT’S FAILURE TO CONSIDER STATE COURT SENTENCES
FOR THE SAME CONDUCT OF SIMILARLY SITUATED DEFENDANTS IN THE COUNTY
WHERE APPELLANT WAS ARRESTED WAS UNREASONABLE UNDER BOOKER AND 18
U.S.C. § 3553(a)(6) WHEN THE DISPARITY IS AS GREAT AS IT IS HERE.
A. Standard of Review – Reasonableness of a Sentence
under 18 U.S.C. § 3553(a)
This Court recently spoke to the standard of appellate review of reasonable-
ness of sentences under 18 U.S.C. § 3553(a) in United States v. Winters, 416 F.3d
856, 859 (8th Cir. August 9, 2005):
[W]e review Winters’s sentence for reasonableness in light of § 3553
(a). See United States v. Killgo, 397 F.3d 628, 630-31 & n. 4 (8th Cir.
2005) (explaining that part of Booker’s remedial command requires
appellate courts to review the sentence for reasonableness). Accord-
ingly, we must review Winters’s sentence with respect to the following
factors:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the of-
fense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the de-
fendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner;
(3) the kinds of sentences available;
8
(4) the kinds of sentence and the sentencing range es-
tablished for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines—
. . .
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission . . . .
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a). (footnotes omitted)
The Winters court added, however, that the Sentencing Guidelines cannot be a strict
control or a presumptive sentence because § 3553(a) controls, not the Guidelines:
Applying Winters’s argument, that the range of reasonableness is es-
sentially co-extensive with the Guidelines range, would effectively
render the Guidelines mandatory. We have been directed to review a
sentence for reasonableness based on all the factors listed in § 3353(a)
(6). The Guidelines range is merely one factor. We cannot isolate
possible sentencing disparity to the exclusion of the all the other § 3553
(a) factors.
Id. at 861. In Winters, the appellant was arguing that the District Court should not
have departed upward to sentence him to the maximum for the offense outside the
Guideline range. Under the facts of that case, however, the Court found the maxi-
mum sentence was reasonable. Judge Heaney dissented.
Also applying the reasonableness standard under § 3553(a) are United States
v. Crume, 2005 WL 2124103, *2 (8th Cir. Sept. 6, 2005); United States v. Lindquist,
Under Arkansas law, District Courts (formerly Municipal Courts) lack8
jurisdiction to do anything but first appearances and set bail. Any felony case must
be filed in Circuit Court for final judgment. Ark. Code Ann. § 16-88-101(a)(3). See
also Ark. Const., Amdt. 80, §§ 7(B) & 10.
9
2005 WL 2086738, *1 (8th Cir. Aug 31, 2005) (“The proper application of the
sentencing guidelines remains the critical starting point for the imposition of a
reasonable sentence based on the factors of 18 U.S.C. § 3553(a). United States v.
Mashek, 406 F.3d 1012, 1016-17 & n. 4 (8th Cir. 2005).”
B. The Same Conduct in State Court Where Appellant
Was Arrested Would Have Resulted in Probation
Appellant traveled within Arkansas, from Crawford County about 150 miles
to North Little Rock, where he was arrested by the North Little Rock Police Depart-
ment. Appellant appeared in a weekend bail setting in the Pulaski County (Little
Rock) Jail, and he made a $5,000 bail. He appeared twice after that in the North
Little Rock District Court. (App. A4-A5, ¶ 4) Instead of his case being filed in
Pulaski County Circuit Court, like 50-100 others similarly situated to him (App. A7,8
¶ 15), Appellant was instead indicted federally. (Id. at A6, ¶s 7-9)
This proved to be a massive difference for Appellant. Under Arkansas law,
Appellant’s crime was potentially subject to probation. Through the stipulation of
the parties, Appellant showed that he was similarly situated to three other persons
whose cases were handled by his defense counsel in the eight or so weeks prior to
his re-sentencing who got varying terms of probation of five to seven years, 90-120
The defendants in those cases are named because their cases had pled and9
they had been disposed of in open court.
10
days to serve in the County Jail, and a fine.9
C. 18 U.S.C. § 3553(a)(6) Permits State Sentences to be Considered
Appellant submits that § 3553(a)(6) permits, even requires, federal courts to
consider state court sentences for the same conduct when the defendant is charged in
federal court after having been charged in state court for the same conduct. Appel-
lant submits that a downward departure on this ground is permissible under § 3553
(a)(6) (“The court, in determining the particular sentence to be imposed, shall
consider— [¶] . . . (6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct;
. . . .”) & (b)(2)(A). The latter subsection to § 3553 was added for the PROTECT
Act, and it provides:
(2) Child crimes and sexual offenses.—
(A) Sentencing.—In sentencing a defendant convicted of an
offense under section 1201 involving a minor victim, an offense under
section 1591, or an offense under chapter 71, 109A, 110, or 117, the
court shall impose a sentence of the kind, and within the range, referred
to in subsection (a)(4) unless–
(i) the court finds that there exists an aggravating cir-
cumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence greater than that de-
scribed;
(ii) the court finds that there exists a mitigating circum-
stance of a kind or to a degree, that–
(I) has been affirmatively and specifically identified as
Note that I and II appear inconsistent, so they have to be alternatives.10
11
a permissible ground of downward departure in the sentencing
guidelines or policy statements issued under section 994(a) of
title 28, taking account of any amendments to such sentencing
guidelines or policy statements by Congress;
(II) has not been taken into consideration by the Sen-
tencing Commission in formulating the guidelines; and[ ]10
(III) should result in a sentence different from that
described; . . . . (footnote added)
Appellant submits that the clear language of § 3553(a)(6) includes state sen-
tences for the same conduct. First, this is a rational interpretation of that provision,
particularly when the Appellant was already charged in state court with the same
conduct and a pattern of dispositions of similarly situated persons is before the court
by factual stipulation. Second, nothing in § 3553(a)(6) precludes this interpretation
at all.
A similar case, suggesting this outcome, but taking no position, decided just
seven weeks prior to Appellant’s resentencing, is the First Circuit decision in United
States v. Wilkerson, 411 F.3d 1 (1st Cir. June 9, 2005).
Wilkerson held that the District Judge in that case noted the disparity between
state and federal sentences but followed a pre-Booker case (United States v. Snyder,
136 F.3d 65, 69 (1st Cir. 1998)) that federal-state disparities were not relevant. In
n.** at that point, the Court said it “express[ed] no opinion at this time about
whether federal-state sentencing disparities may be considered under the post-Book-
The petition is available on the Internet at http://sentencing.typepad.com/11
sentencing_law_and_policy/files/wilkerson_doj_petition_for_rehearing.pdf.
Actually, the government was observing in its footnote “chatter” in com-12
mentary by the defense bar on criminal defense weblogs or “blogs” that it cites in the
petition.
12
er advisory guidelines.” The implication is apparent: pre-Booker, federal-state
sentencing disparities were not relevant under § 3553(a)(6), but post-Booker they
are. If they weren’t, the Wilkinson court would have said so.
Wilkerson, moreover, is more relevant here because the opinion for the major-
ity was written by Eighth Circuit Senior Judge Gibson, sitting on the First Circuit by
designation.
Significantly, the government filed a petition for rehearing in Wilkerson on the
specific issue here, but, according to PACER, the petition was denied on August11
18, 2005, and the mandate issued August 29, 2005.
The petition for rehearing and the court’s denial are telling: The government
sought to have the First Circuit strike any reference to federal-state sentencing
disparity because it discerned a potential trend in this direction that it was seeking to
avoid. Wilkerson, Govt’s Pet. for Reh. at 2-3 & n. 1. By implication, then, the12
denial of the Government’s vehement petition for rehearing underscores the sugges-
tion that federal-state sentencing disparities are indeed relevant in the post-Booker
sentencing world.
Id. at 863:13
Moreover, there is no evidence in this record, nor are there any publicly
available studies or statistics, indicating that a first offender convicted
of manslaughter with a firearm in South Dakota would serve more than
the thirteen to fifteen-year sentence the defendant would have faced
with a Guidelines sentence.
13
Judge Heaney’s dissent in Wilkerson, we submit, also supports this conclu-
sion. Wilkerson, 416 F.3d at 862-63. Judge Heaney was concerned that the District
Court in Wilkerson feared that the defendant would get a lesser sentence under
federal law than state law in South Dakota for manslaughter, but he pointed out that
there was nothing in the record, no evidence or studies of state dispositions, on
which to base that conclusion. 13
To the contrary, we have exactly that here: We have a stipulation and undis-
puted proof that if Appellant’s case had gone to conclusion in the Pulaski County
Circuit Court, the state court with jurisdiction where Appellant was arrested and
thrice appeared in court (including the jail bail hearing), he would have received five
years probation, 90 days in jail, and a fine. Instead, by being fortuitously prosecuted
in federal court, he received 27 months imprisonment. Not once, but twice. At the
time of resentencing, he had already served a year for a crime for which he could
have avoided prison time if the federal government fortuitously had not decided to
apparently make an example out of him.
At the re-sentencing, Judge Dawson seemed sympathetic:
14
THE COURT: Miss Jenner, Mr. Hall, Mr. Hall, I am concerned
not only about the length of the sentence that’s actually issued, but of
the time served. There is a great disparity between federal courts and
state courts. . . . I was at a seminar a couple weeks ago and that was
discussed, but often times the charges can be brought in either state
court or federal court, and I have to work with and determine and de-
cide the cases that are filed here and have nothing to do with the state
court cases, but that is of concern. . . . I understand your point and I’m
concerned about it.
Resentencing Tr. at A21:15-A22:14 (July 29, 2005).
Appellant’s argument continued:
MR. HALL: . . . And my request for the downward departure is to
reduce the sentence to the same as Mr. Goines, 15 months. Leave
everything else the same . . . . [I]n the overall scheme of things cases
sometimes end up in federal court, not state court. And I asked the
[state] prosecutor how many cases do you have? And they said I can’t
tell you. It’s between 50 and a hundred. And our office has handled at
least 10 of them, and we’ve sentenced–and that’s what’s–our stipula-
tion is based on, just the cases we’ve sentenced in the last six weeks,
three cases, two had no aggravating circumstances at all, and that’s just
like Mr. Jeremiah’s case. . . . [One case in Judge Langston’s court]
was a direct recommendation of the prosecutor’s office, five years
probation on a non-aggravating factor, a case almost identical to Mr.
Jeremiah’s. And how the cases end up in federal court, I have no idea.
Why they pick one to go federal and one to go state is beyond me, but
they do, and here we have one man who suddenly gets swept up in the
federal system and gets substantially more time [and] having to go to a
federal correctional institution as well as somebody that goes to Pulaski
County Jail for a while, everybody has to be a registered sex offender,
everybody has to give DNA samples, nobody can get their sentence
expunged. But one goes to jail for 27 months and another one goes for
30 days essentially and that’s a huge disparity and that disparity just
can’t be count[enanc]ed. . . . [W]hether or not you end up in federal
court reminds me of the saying from . . . when they struck down the
death penalty in the early seventies, the Supreme Court did, being sen-
tenced to death is like being struck by lightning. You can’t predict
The transcript twice says “counted,” but Appellant’s counsel clearly re-14
members saying “countenanced.”
15
when it’s going to happen, and it’s just completely arbitrary. And
that’s no offense to the federal government, but how a case gets chosen
for federal prosecution, I don’t know, but, nevertheless, he gets 27
months, somebody in Pulaski County where he went, where he was
arrested, where they brought him by engaging in the conversation, he
would have got 90 days, and that’s a disparity – 30 days to serve, that’s
just a huge disparity and shouldn’t be count[enanc]ed.
Id. at A24:18-A27:23 (bracketed material added).14
D. Federal-State Disparities are Relevant When
State Sentences Are Constitutionally Excessive
In Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001), this Court dealt with an
Eighth Amendment cruel and unusual challenge to an Arkansas life sentence dis-
pensed by a jury for delivery of .238 grams of crack ($20 worth) under Harmelin v.
Michigan, 501 U.S. 957 (1991) (life sentence for possession of 672 grams of crack
not cruel and unusual).
This court engaged in a sensitive balance of the disproportion between the
crime and the sentence, and it concluded that Henderson’s sentence violated the
Eighth Amendment. The court noted the small amount of the drugs involved, his
lack of prior record, the fact he would not be parole eligible, the disposition of
similar crimes in other states, and the fact that, if the case had been prosecuted in
federal court, “Mr. Henderson would receive a sentence of only ten to sixteen
months for his offense, see U.S.S.G. § 2D1.1(a)(3), § 2D1.1(c)(14).” Henderson,
16
258 F.3d at 714.
The fact Henderson would be dealt with much more leniently is relevant to the
reasonableness of his state sentence. A fortiori, should not the state sentence for a
man charged in federal court for the same conduct when his case started in state
court be a relevant consideration under § 3553(a)(6)? The plain language of 3553(a)
(6) permits this construction, and nothing precludes it.
E. This Sentence is Unreasonable
The “reasonableness” standard is well known to appellate courts, and unifor-
mity of sentencing is no longer expected to be the norm under Booker. It may be a
desirable goal, but it cannot be a determinative factor, otherwise, the Guidelines
become mandatory again. As the Supreme Court noted in Booker, 125 S.Ct. at 766-
67:
Nor do we share the dissenters’ doubts about the practicality of a
“reasonableness” standard of review. “Reasonableness” standards are
not foreign to sentencing law. The Act has long required their use in
important sentencing circumstances—both on review of departures, see
18 U.S.C. § 3742(e)(3) (1994 ed.), and on review of sentences imposed
where there was no applicable Guideline, see §§ 3742(a)(4), (b)(4),
(e)(4). Together, these cases account for about 16.7% of sentencing
appeals. See United States Sentencing Commission, 2002 Sourcebook
of Federal Sentencing Statistics 107 n. 1, 111 (at least 711 of 5,018
sentencing appeals involved departures), 108 (at least 126 of 5,018
sentencing appeals involved the imposition of a term of imprisonment
after the revocation of supervised release). [citations omitted] That is
why we think it fair (and not, in Justice SCALIA’s words, a “gross
exaggeratio[n],” post, at 794 (dissenting opinion)), to assume judicial
familiarity with a “reasonableness” standard. And that is why we be-
17
lieve that appellate judges will prove capable of facing with greater
equanimity than would Justice SCALIA what he calls the “daunting pros-
pect,” ibid., of applying such a standard across the board.
Neither do we share Justice SCALIA’s belief that use of a reason-
ableness standard “will produce a discordant symphony” leading to
“excessive sentencing disparities,” and “wreak havoc” on the judicial
system, post, at 795 (internal quotation marks omitted). The Sentenc-
ing Commission will continue to collect and study appellate court
decisionmaking. It will continue to modify its Guidelines in light of
what it learns, thereby encouraging what it finds to be better sentencing
practices. It will thereby promote uniformity in the sentencing process.
28 U.S.C.A. § 994 (main ed. and Supp.2004).
Regardless, in this context, we must view fears of a “discordant
symphony,” “excessive disparities,” and “havoc” (if they are not them-
selves “gross exaggerations”) with a comparative eye. We cannot and
do not claim that use of a “reasonableness” standard will provide the
uniformity that Congress originally sought to secure. Nor do we doubt
that Congress wrote the language of the appellate provisions to corre-
spond with the mandatory system it intended to create. Compare post,
at 791 (SCALIA, J., dissenting) (expressing concern regarding the pres-
ence of § 3742(f) in light of the absence of § 3742(e)). But, as by now
should be clear, that mandatory system is no longer an open choice.
And the remedial question we must ask here (as we did in respect to
§ 3553(b)(1)) is, which alternative adheres more closely to Congress’
original objective: (1) retention of sentencing appeals, or (2) invalida-
tion of the entire Act, including its appellate provisions? The former,
by providing appellate review, would tend to iron out sentencing differ-
ences; the latter would not. Hence we believe Congress would have
preferred the former to the latter—even if the former means that some
provisions will apply differently from the way Congress had originally
expected. See post, at 791 (SCALIA, J., dissenting). But, as we have
said, we believe that Congress would have preferred even the latter to
the system the dissenters recommend, a system that has its own prob-
lems of practicality. See supra, at 762.
In this case, any concept of “reasonableness” dictates that the 27 month sen-
tence in this case is “unreasonable.” Appellant was arrested in North Little Rock,
18
Arkansas, appeared in the state District Court three times, made a state bond, and
then, lo and behold, he finds himself the legal version of being struck by lightning:
He is indicted in federal court for a case that demonstrably and undeniably would get
him five years probation and a short jail sentence in state court because of a lack of
any aggravating factors. Between 50 and 100 men have been prosecuted in Pulaski
County for similar offenses. Some have received prison time, but it is apparent that
Appellant would not have. Instead, he is sentenced to 27 months federal time.
The disparity here is unconscionable: No person should be subject to the
whims of the police end running their state system to federally severely punish a first
time offender with no aggravating circumstances with 27 months when he would
have otherwise gotten probation.
19
CONCLUSION
The judgment of the District Court should be reversed and remanded with
directions to re-sentence Appellant considering the influence of state court sentences
under § 3553(a)(6).
Respectfully submitted,
JOHN WESLEY HALL, JR.
Ark. Bar No. 73047
1311 Broadway
Little Rock, Arkansas 72202-4843
(501) 371-9131 / fax (501) 378-0888
e-mail: [email protected]
Attorney for Appellant
CERTIFICATE OF COUNSEL
I, John Wesley Hall, Jr. , hereby certify that this document was prepared in
WordPerfect 12, the word count of the body of the brief is less than 4450 words
long and the disk in .pdf format that it is saved on is a new CD-Rom and is virus-
free.
_______________________________
John Wesley Hall, Jr.
CERTIFICATE OF SERVICE
I, John Wesley Hall, Jr., certify that I mailed two copies of this brief and on
CD-Rom to Kyra Jenner, Assistant U.S. Attorney, P.O. Box 1524, Fort Smith,
Arkansas and one copy to Brian Faye Jeremiah, 00600-010, FCI, P.O. Box 7500,
Texarkana, TX 75505-7500 on September 19, 2005.
_________________________
John Wesley Hall, Jr.