In assessing whether two defendants are similarly situated for purposes of § 3553(a)(6), are courts required to consider their actual offense conduct?

18 U .S.C. § 3553(a)(6) require s federal sentencing judges to consider “ the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct .” This case involves two co -defendants who undisputedly engaged in identical criminal conduct and had similar records but who pleaded guilty to different statutory provisions . The district court sentenced one to 280 months of imprisonment and the other to 97 months of imprisonment, resulting in a disparity of more than 15 years. The court provided no justification for sentencing one more har shly. In fact, the reason it gave for imposing the 280 -month sentence applied equally to both codefendants. On appeal, t he Fifth Circuit held t hat the co -defendants were not similarly situated for purposes of § 3553(a)(6) solely “because [they] pleaded guilty to different offenses, ” joining two other circuits (the Ninth and Eleventh Circuit s) that have held the same. In contrast, the First, Sixth, Seventh, Eighth, and Tenth Circuits assess defendants ’ actual conduct —not statutes of conviction —to determine whether t hey are similarly situated under § 3553(a)(6) . Thus, the question presented i s: In assessing whether two defendants are similarly situated for purposes of § 3553(a)(6) , are courts required to consider their actual offense conduct?