Eastern District of New York Recognizes Impact of Sentencing Differentials

In an opinion issued in late November 2022, Senior Judge Frederic Block of the U.S. District Court for the Eastern District of New York discussed the impact of disparities between sentences of co-defendants based on their decisions to exercise their constitutional right to trial when finding extraordinary and compelling grounds for a sentence reduction. The case involved two defendants seeking reduced sentences on compassionate grounds under the First Step Act. In granting the first defendant's motion, the court wrote:

Courts have found that a gross disparity between sentences of co-defendants stemming from their choice to exercise or forgo their constitutional right to a trial is an extraordinary and compelling factor. See United States v. Ballard, 552 F. Supp. 3d 461, 468 (S.D.N.Y. 2021) (finding that a drastic sentencing disparity between co-defendants, which resulted in part from the fact that Ballard opted to exercise his right to trial when his co-defendant accepted a plea deal, supported a determination that extraordinary and compelling circumstances warranted a reduction of the defendant's sentence); see also United States v. Haynes, 456 F. Supp. 3d 496, 514 (E.D.N.Y. 2020) (“The Court readily concludes, on the facts as detailed above—including the brutal impact of Haynes's original sentence, its drastic severity as compared to codefendant Rivers's ten-year term, its harshness as compared to the sentences imposed on similar and even more severe criminal conduct today, and the extent to which that brutal sentence was a penalty for Haynes's exercise of his constitutional right to trial—... [constitute] an extraordinary and compelling circumstance warranting relief under § 3582(c).”).

Russo exercised his constitutional right to trial. Of Russo's fourteen co-defendants, seven went to trial. Six received mandatory life sentences under the then-mandatory sentencing guidelines. The seventh was acquitted.

In contrast, the remaining co-defendants received sentences ranging from time-served, equating to approximately four years, to 270 months. The offense conduct of these defendants, although ultimately charged differently by the government than those defendants who proceeded to trial, was no less violent or destructive than those who received life sentences. For example, co-defendant Theodore Persico pleaded guilty for charges including conspiracy to commit murder and received a sentence of 270 months. Co-defendant Richard Fusco received a sentence of 168 months after pleading guilty. He was originally charged with conspiracy to commit murder.

This disparity does not reflect the goals of sentencing. And, while the government's argument that accepting responsibility for one's crimes should result in a lower sentence is well taken, it is often disproportionately reflected in how co-defendants are charged and sentenced. Thus, this disparity in sentencing also weighs toward a finding of extraordinary and compelling circumstances.

For the complete opinion, see United States v. Russo et al., Case No. 92-CR-351, Case No. 90-CR-1063, E.D.N.Y. (November 28, 2022).