The Duty to Avoid Disparity: Implementing 18 U.S.C. Section 3553(A)(6) after Booker

Since passage of Sentence Reform Act of 1984 (SRA), 18 U.S.C. Section 3553(a)(6) has required sentencing judges in federal court to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. At same time, SRA also required judges to adhere in most cases to Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, Supreme Court ruled in United States v. Booker that Guidelines could no longer be treated as mandatory. Since then, numerous sentencing judges have invoked (a)(6) in a variety of different circumstances to justify non-Guidelines sentences. This Article surveys cases, examines origins and purposes of (a)(6), and proposes a new analytical framework for judges to use when implementing provision. Under this approach, (a)(6) would require that a sentencing judge consider average actual sentence imposed in past cases involving a similar offense of conviction, and expressly justify any deviation from this empirical norm.