United States v. Willis , 139 F.3d 811 ( 1998 )

[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-3277
Non-Argument Calendar
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D. C. Docket No. 4:95-CR-04060-004
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
versus
CORNELL WILLIS,
Defendant-Appellee,
Cross-Appellant.
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Appeals from the United States District Court
for the Northern District of Florida
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(April 20, 1998)
Before COX, BIRCH, and CARNES, Circuit Judges.
PER CURIAM:
Cornell Willis was convicted of possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(b)(1)(C). At sentencing, the district court
departed downward under U.S.S.G. § 5K2.0, and sentenced Willis to thirteen months
imprisonment in order to prevent disparate sentences between co-defendants. The
Government appeals, contending the district court abused its discretion in departing
downward, and requests remand for resentencing within the applicable Guideline
range of 41 to 51 months. Willis cross-appeals, contending the evidence was
insufficient to support his conviction.1
Willis’ brother and co-accused, Cordell Willis, pleaded guilty, with the United
States’ concurrence, pursuant to a plea agreement with the state of Florida, to state
charges of possession of cocaine with intent to sell and was sentenced to time served
and five years probation. The Government dismissed all pending federal charges
against Cordell Willis. Based on the disparity in sentences imposed on brothers of
roughly equal culpability for the same offense conduct, the district court opined that
a downward departure was warranted in order to achieve parity. The Government
contends that the district court may not depart downward in order to reconcile
disparity between federal and state sentences among codefendants because such
departures create system-wide disparities among federal sentences. We agree.
1
We affirm Willis’ conviction without discussion. See 11th Cir. Rule 36-1.
2
Generally, a sentencing court must impose a sentence within the range provided
for by the guidelines unless it finds there exists “a mitigating circumstance 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 different from that
described.” See U.S.S.G. § 5K2.0 (policy statement) (1995) (quotations omitted). We
conduct our analysis according to the four-part test established in Koon v. United
States, 518 U.S. 81, 116 S.Ct. 2035 (1996), which sets out the following questions:
(1) What features of the case make it outside the guidelines’ “heartland” and
make it special or unusual?
(2) Has the Commission forbidden departure based on those features?
(3) If not, has the Commission encouraged departure based on those features?
(4) If not, has the Commission discouraged departure based on those features?
See United States v. Bristow, 110 F.3d 754, 757 (11th Cir. 1997). The guidelines do
not comment on disparate federal and state sentences imposed upon codefendants;
therefore, we must determine whether this factor takes this case out of the “heartland”
of the guidelines.
This court has recently held that a departure based on a theoretical sentence that
a defendant might have received had he been prosecuted in state court is unwarranted.
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See United States v. Searcy, 132 F. 3d 142 (11th Cir. 1998). To allow such a departure
on those grounds would undermine the nationwide uniformity that Congress sought
to ensure when it promulgated the sentencing guidelines. See id at 1422; see also
United States v. Sitton, 965 F.2d 947 (9th Cir. 1992) (no departure available due to
disparities between state and federal sentencing schemes); United States v. Snyder,
136 F.3d 65 (1st Cir. 1998) (federal and state sentencing disparity not a feature
justifying departure). This court has likewise joined other circuits in holding that
disparate sentencing among federal codefendants was adequately considered by the
Sentencing Commission and is therefore not an appropriate ground for departure. See
United States v. Chotas, 968 F.2d 1193 (11th Cir. 1992); see also United States v.
Wong, 127 F.3d 725 (8th Cir. 1997) (disparity in sentences imposed on codefendants
not a proper basis for departure); United States v. Perkins, 108 F.3d 1512 (4th Cir.
1997) (same); United States v. Ives, 984 F.2d 649 (5th Cir. 1993) (same); United
States v. Gallegos, 129 F.3d 1140 (10th Cir. 1997) (departure based on sentencing
disparity among codefendants not justified when sentences dissimilar due to plea
bargain).
This court has not previously addressed the particular issue of whether
departure is appropriate based on disparate federal and state sentences imposed on
codefendants. Nevertheless, we find that the rationale in Searcy and Chotas compels
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a similar conclusion in this case. Permitting departure based on a codefendant’s
sentence in state court would seriously undermine the goal of nationwide uniformity
in the sentencing of similar defendants for similar federal offenses. See United States
v. Hall, 977 F.2d 861, 864 (4th Cir. 1992); see also United States v. Reyes, 966 F.2d
508 (9th Cir. 1992) (downward departure based on disparity in federal and state
sentences received by co-accused not justified). Accordingly, because the district
court abused its discretion in departing from Cornell Willis’ applicable guideline
range, we vacate his sentence and remand for resentencing in accordance with this
opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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