This is a good question because a lot of federal criminal cases, multiple defendants are charged at the same time, and usually what you'll see is whoever's at the top of the indictment in a federal criminal case, is usually who the prosecutors or government view as the most serious players in the criminal case. In other words, the ones who are most involved who are facing the most time in a criminal case.
So, a lot of times you want to see what one defendant will get and if you're similar to that defendant, you can make an argument that your sentence should be the same or even better depending on how you compare to that particular defendant. So, that is a very good argument.
Disparity in Sentences
It's basically called, arguing that there shouldn't be a disparity in sentences with defendants who are similarly situated. For example, let's say in a drug trafficking that there's multiple people who are moving drugs from point A to point B. They're getting paid $1,500.00 every time they move the drugs.
It doesn't matter what kind of drugs they are. It doesn't matter how much drugs there are. It doesn't matter the value of the drugs. All these people are basically mules in the drug scheme. So, if you caught two or three mules doing the same thing, moving the same drugs, they should all get the same sentence, unless they have a prior criminal record or there's some other difference.
If they're similarly situated then there's a good argument that if you're the second defendant to get sentenced after someone who is similarly situated to you that you should get at least the same sentence as them, maybe less depending on whether you have a criminal history or they have a criminal history. There's a number of other factors that are going to be factored in.
Comparing defendants in federal criminal cases is something the judges will do and it's also something that a smart defense attorney can bring up at a federal criminal sentencing to point out to the judge that maybe one particular defendant got no custody time on a case.
If your client is similarly situated to that defendant, then you can make the argument that your client shouldn't get any time either. Why would you give one defendant who is in the same position as another defendant a different, harsher and more serious punishment?
Downward Departure in Federal Sentencing
So, this is definitely a factor that can be argued to get the judge to depart downward from let's say you fall in the category where you're looking at five to seven years in federal prison, but a co-defendant who is similarly situated to you in all respects got a three year sentence.
You would certainly have in your position paper an argument that there shouldn't be a disparity in sentences and that you shouldn't get any more time than that three years that the co-defendant got, even though your criminal history and your guideline range puts you at a higher level, that the judge should compare you with that other co-defendant and give you the same or less sentence.
So, this is just another weapon that you have in your federal criminal defense toolbox as an attorney to really look at all of the angles, and if you've got some defendants who sit in the same position that your client sits, you want to consider making that argument, again, depending on what the sentence is.
That's why sometimes in a federal criminal case it's nice to be the second, third or fourth person sentenced versus being one of the first people sentenced, because that tends to bite into your argument that you should get the same as somebody else, because obviously that person hasn't been sentenced yet, you're not going to be in a position to get the same sentence as them. This is something else to consider when you're looking at federal cases.
If you've got a federal criminal defense case and you're looking to getting a lower sentence because you have to take a deal on the case because the government has the goods on you, you're going to need to get an attorney who can look at every single downward departure and do the best they can to get you the best result.