Whether or not a sentence is appropriate for the crime convicted of and the character of the person convicted is a frequent issue on appeal. Less frequently there is an issue of sentence disparity between co-actors or co-accuseds.
The recent ACCA decision in United States v. Martinez (Sept. 2017), lays out the law fairly well on how to analyze and argue the issue.
In this case we hold appellant’s sentence was appropriate despite his assertion of sentence disparity with his coactor. While there is a not a bright-line test for when a sentence is highly disparate, the law is clear that sentence disparity is only one of many aspects of sentence appropriateness. We therefore hold that even if appellant’s sentence was highly disparate with his coactor’s sentence, appellant’s sentence was still appropriate for his crimes.
In making sentence appropriateness determinations, we consider, among other things, the character of the offender and the nature and seriousness of his offenses. While we have wide discretion in determining whether a particular sentence is appropriate, we are not authorized to award clemency.
Unlike sentence appropriateness, sentence comparison is required only in “those rare instances in which sentence appropriateness can be fairly determined only by reference to disparate sentences adjudged in closely related cases.” The burden is on appellant seeking relief to show that his or her case is “closely related” to the cited cases and that the sentences are “highly disparate.” Once met, the burden shifts to the government to show a rational basis for the disparity.
(Citations to case law omitted.)
[Note, I represent the co-accused in his appeal.]