This post from Decision of the Day begins:
"Today, the Fourth Circuit remands a case in which District Judge Brinkema [of the E.D. Va.] sentenced a drug defendant to the eight months she would have received under state law as opposed to the 46-57 months recommended by the federal guidelines. The Court takes issue with the judge’s failure to consider the risk of disparity in sentences among federal defendants, most of whom would not be so lucky as to have a Judge Brinkema presiding over their criminal trials. The court also holds that it is unreasonable to consider state sentences in determining a federal sentence except in unusual circumstances."
Professor Berman has this interesting post about the case, and he wrote: "I've now had a chance to read Clark closely, and it is first-rate work by all the judges. Even Judge Luttig's opinion, which is most emphatic about the error in considering state sentencing practices, includes the important and valuable caveat that 'the consideration of state sentencing practices is not necessarily impermissible per se.'"
The case was U.S. v. Clark, and each member of the panel of Judges Luttig, Motz, and King wrote separate opinions.
In recent years, I've heard a lot about the perceived sentencing disparity between the federal courts and Virginia state court. Someone is alleged to have once famously declared that for possession of OxyContin, in federal court a defendant gets four years in the penitentiary, where as in state court for the same offense, the defendant would get probation and signed up for food stamps. The vaunted gun offense program in Richmond, Project Exile, allowed the City to make use of the stiffer sentences in federal court.
I note also that my good friend Chad Dotson, the Commonwealth's attorney in Wise County, was just before Christmas made a special assistant U.S. attorney, and I suspect this was done primarily for the very purpose of allowing him to bring to bear the threat of federal sentencing to his dealings with criminal defendants in Wise County.