A Fifth Circuit panel ruling today addresses, but ultimately rejects, a white-collar defendant's claim that "her sentence should be vacated because it was the result of an unconstitutional 'trial penalty' — a punishment for choosing to exercise her right to stand trial instead of pleading guilty." US v. Gozes-Wagner, No. 19-20157 (5th Cir. Sept. 28, 2020) (available here). Because I helped with an amicus brief in the case, I will not comment extensively beyond recommending the opinion be read in full and highlighting these passages (with footnotes and cites removed):
Here, however, Gozes-Wagner and Voronov were ultimately charged with different crimes that carried different statutory maximum sentences. Although they may have participated similarly in the conspiracy, our job is not to look at their two sentences and decide whether we think Voronov and Gozes-Wagner should have been punished more equally based on their conduct. Instead, our duty is to determine whether the district court sentenced Gozes-Wagner more harshly than it otherwise would have because she went to trial instead of pleading guilty. And on this record, we cannot say that it did...
For example, if the district court plainly stated that it was punishing the defendant more severely than it otherwise would because she went to trial, that would clearly amount to a constitutional violation even absent a comparison to others similarly situated to the defendant. But that did not happen here.
We recognize that most — if not all — cases will not be so cut-and-dried, and that a defendant’s constitutional rights may be violated even absent such an explicit statement. In those cases, it is the comparison to others that necessarily sheds light on whether a constitutional violation occurred. If the only meaningful difference between defendants was that one went to trial and the others did not, and the trial-standing defendant received a much more severe sentence than the pleading defendants, it could very well be the case that vacatur of the sentence will be required on trial penalty grounds. But a defendant who cooperates with the Government is not similarly situated to one who refuses to do so. Nor are defendants similarly situated when they are convicted under different statutes that carry different maximum sentences. If the case were otherwise, we would be holding that the Constitution mandates that defendants convicted of committing different crimes be sentenced similarly if the conduct underling those convictions is similar. We see no such mandate in the Constitution or in the Due Process caselaw addressing claims like Gozes-Wagner’s.
I cannot help noting that, though nothing "in the Constitution or in the Due Process caselaw" may speak to sentencing disparities, Congress expressly instructed sentencing judges, in 18 USC 3553(a)(6), to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." And the sentencing judge in this case knew that defendant Voronov (who "participated similarly in the conspiracy") faced a 5-year maximum sentence after pleading guilty, but he still gave Gozes-Wagner a sentence of 20 years. That served as one basis for arguing that this sentence was unreasonable even if not unconstitutional, but the Fifth Circuit panel was ultimately unmoved on reasonableness arguments:
Nothing in the record suggests that the court went out of its way to punish Gozes-Wagner for going to trial. To the contrary, when presented with arguments that she was similarly situated to her co-defendants, the district court correctly pointed out that for various reasons, including the fact that her co-conspirators pleaded guilty to charges carrying lower maximum sentences, she was not similarly situated to them at sentencing. The record does not reflect a clear error of judgment in the district court’s balancing of the § 3553(a) factors.
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