Sentencing Disparity between Co-Defendants

United States v. Pisman, No. 05-1625 (April 7, 2006): Wilkerson and Pisman were indicted for interstate travel sex offenses. Wilkerson made a deal with the government and testified against Pisman. The guidelines range for these offenses was 108-135 months. Wilkerson received a sentence of 68 months in return for his co-operation. At Pisman's sentencing the district court viewed Wilkerson as more culpable and sentenced Pisman to 60 months. The court believed that, in order to avoid unwarranted disparity, any sentence of Pisman should reflect Wilkerson's greater culpability. Had Wilkerson received a harsher sentence, the court would have imposed a harsher sentence on Pisman. The Seventh Circuit remanded for re-sentencing. Although it held open the possibility that a 60-month sentence might still pass muster, it disapproved the district court's rationale of avoiding unwarranted disparity. A reward to Wilkerson for his co-operation would not create unwarranted disparity.

The opinion also contains a discussion of the inconsistent verdict rule. Pisman was acquitted of two counts, but convicted of the third count. Although these verdicts were logically inconsistent, Pisman could receive no relief, since inconsistency is not a basis for setting aside the guilty verdict.