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).
So, according to the first, disparities between state and federal sentencing are to be considered. Wow! This is good. I think. But... there is more. Update: SL&P comments here and here about why DOJ isn’t going to like it.
The rest of the case holds that:
- Under FRE 106 (rule of completeness) and 801(d)(1)(B) (prior consistent statements to rehabilitate) that a prior consistent statement must have “some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony”. See United States v. Simonelli, 237 F.3d 19, 25-29 (1st Cir. 2001) (both the rule of completeness and the common law doctrine allow prior consistent statements when they tend to show that a statement used to impeach a witness is not really inconsistent when understood in its proper context.). But, the error was harmless.
- Under FRE 701 (lay opinion) an interpretation of a post-arrest statement of a defendant is admissible when the “lay expert” (a cop, of course) can explain the geographic or architectural features to which he refers (in this case, and alley.)
The court rejects a number of prosecutorial misconduct challenges based on what the prosecutor said during closing argument, and there is a sufficient nexus between a gun and interstate commerce under Scarborough v. United States, 431 U.S. 563, 575-78 (1977).