In a Booker remand in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) the panel seems to be endorsing the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world. The passage comes towards the end of the opinion, and states:
The district judge sentenced Wilkerson to the lowest available sentence under the Guidelines. He repeatedly expressed his concern about disparate treatment between federal and state court sentences in similar cases, but stated that the Guidelines did not permit him to take that disparity into account. The district judge also observed that Wilkerson had the most horrible young life he had seen in 17 years on the bench. Both the need to avoid unwarranted sentencing disparities and the history and characteristics of the defendant are among the factors to be considered by the now advisory Guidelines. 18 U.S.C. § 3553(a). As this court recognized in Heldeman, where there is a reasonable indication that the district judge might well have given a different sentence under an advisory guidelines regime, and it would be easy enough for him to say no with a minimum expenditure of effort, we are persuaded that remand is required. 402 F.3d at 224. We express no view on whether defendant should be resentenced or on any possible resentence.
Professor Berman in this post at Sentencing Law and Policy states that prosecutors "will seek re-hearing on this point since, as noted in this post, DOJ has been saying it will appeal any district court sentence with a variance based on comparisons to state sentencing laws. Wilkerson as it stands seems to approve such comparisons."
According to this last linked to post at SL&P, DOJ personnel have stated that there are "five types of sentencing decisions that would be appealed in every instance: (1) any sentence with a variance of straight probation; (2) any sentence with a variance based on crack/powder cocaine disparity; (3) any sentence with a variance based on fast-track disparity; (4) any sentence with a variance based on comparison to state sentencing laws; and (5) any sentence with a variance based on substantial assistance in the absence of a 5K letter. This appellate approach should produce some interesting (and, I would anticipate, somewhat disparate) circuit court rulings about the meaning of reasonableness."
I have a different take on this than Professor Berman. In my view, rather than seeking rehearing before the Court at this stage, DOJ will likely wait to see what the District Court does on remand and then appeal the matter if the District Court actually considers the disparity between state and federal sentences.
See also this post at Appellate Law & Practice which covers not only the Booker aspects, but also other issues decided in the Wilkerson opinion such as the use of prior consistent statements to rehabilitate a witness as well as prosecutorial vouching.