The following guidelines calculation lead to the imposition of
Ortiz-Zayas' 92-month term of incarceration. Based on an offense
level of 26 and a Criminal History Category of IV, Ortiz-Zayas's
guideline range for imprisonment was calculated to be 92 to 115
months. The maximum term of imprisonment on each count for which
Ortiz-Zayas was convicted was five years, or 60 months. According
to § 5G1.2(d):
If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on or more of
the other counts shall run consecutively, but only
to the extent necessary to produce a combined
sentence equal to the total punishment. § 5G1.2(d) (emphasis added). The Guidelines therefore
provide that the sentence on one of Ortiz-Zayas's two
counts run consecutively in order to reach the
prescribed guideline range.
However, pursuant to the pre-Booker sentencing regime, this
Court did not previously consider all of the factors enumerated
in 18 U.S.C. § 3553(a) when imposing Ortiz-Zayas' sentence. In
particular, the Court was constrained from considering section
3553(a)(6), which requires that the Court take into account "the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct." 18 U.S.C. § 3553(a)(6). Prior to Booker, courts of
appeals, including the Second Circuit, took the position that
section 3553(a)(6) did not provide any basis for downward
departures in order to avoid unwarranted disparities in the
sentences imposed on co-defendants. See United States v.
Joyner, 924 F.2d 454
, 460 (2d Cir. 1991) (stating that "[t]o
reduce the sentence by a departure because the judge believes
that the applicable range punishes the defendant too severely
compared to a co-defendant creates a new and entirely unwarranted
disparity between the defendant's sentence and that of all
similarly situated defendants throughout the country"); see
also U.S. v. McMutuary, 217 F.3d 477, 489 (7th Cir. 2000)
(stating that "most other courts have concluded that sentencing
disparities between co-defendants should never constitute a
permissible basis for departure from the Guidelines' sentencing
range") (citing, inter alia, United States v. McKnight, 186 F.3d 867
, 869 (8th Cir. 1999); United States v. Contreras,
180 F.3d 1204
, 1209-10 (10th Cir. 1999); United States v.
Lawrence, 179 F.3d 343
, 351 (5th Cir. 1999); United States v.
Perkins, 108 F.3d 512
, 515 (4th Cir. 1997)); United States v.
Higgins, 967 F.2d 841
, 845 (3d Cir. 1992).