concurring.
I fully agree with the court’s rejection of Grier’s due process argument, and I agree that under the rule of United States v. Meza, 127 F.3d 545 (1996), the defendants’ sentences must be vacated. I write separately to question the applicability of the rule of Meza.
The court correctly concludes that Brown’s sentence was illegally short — “unjustified” to use Meza’s term. But neither Grier’s nor McMutuary’s sentence was incorrect. Neither complained about the applications of the Guidelines to them; each was sentenced within the appropriate range, so if Brown’s illegal sentence were not in the picture, neither Grier nor McMutuary could even appeal from their sentence. See United States v. Mattison, 153 F.3d 406, 412 (7th Cir.1998). But the rule of Meza apparently puts Brown’s sentence in the picture.
The focus of the rule in Meza as now applied in this case is much too narrow, thus allowing the appellants to raise a question that need not be asked. Prior to the adoption of the Guidelines, the federal sentences for similar crimes showed significant disparity, depending on the sentencing judge. Congress was convinced this perceived disparity — which arguably resulted from the nearly unlimited discretion given to federal district court judges — was unjustified; the Guidelines were an attempt to eliminate this disparity. So when examining a supposed “disparity” in sentencing, the proper focus should include all federal sentences, not merely the few resulting from one judge in a particular trial. The disparity between the sentence Brown got (and what he should have gotten) reflects not only upon the sentences of the two other defendants in this case, but upon the federal sentences of all other bank robbers. Surely the rule in this circuit is not that three improper sentences are better than one. Fortunately the court emphasizes, opn. at 970 n. 7, that Meza does not require that Grier and McMutuary receive downward departures due to the disparity with Brown, only that the court consider it.
The length of one defendant’s sentence should almost never be the basis for • a downward departure for another. I recognize that in Koon the Court prohibited lower courts from expanding the number of the impermissible factors that may not be taken into consideration. See opn. at 965-66 (citing Koon, 518 U.S. at 106-07, 116 S.Ct. 2035). But before a district court may depart from the Guidelines, the court must find that the factor at issue— here “disparity” in sentences — “as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guidelines.” Koon, 518 U.S. at 109, 116 S.Ct. 2035. Nothing about Grier or *971McMutuary took their cases outside the “heartland.” The only person who escaped from the heartland was Brown, and his sentence was way too short. But that does not make Grier’s or McMutuary’s situation unusual compared to the federal sentences of most bank robbers.
Moreover, as a practical matter, the rule of Meza is difficult to implement. It requires the district judge, when deciding whether to downwardly depart for some defendants, to ask whether she had given an illegal sentence to another defendant involved in the same crime. Not surprisingly, the district judge in this case was unwilling to say she had. So in the end, what we will have is what occurred here: appeals that raise collateral attacks based on some other defendant’s sentence. The proper solution to an illegal sentence is an appeal by the government seeking to correct the error, not an appeal by the co-defendants seeking to compound the error by getting a windfall for themselves.
ORDER
July 20, 1999
The petition for rehearing in the above-entitled case is GRANTED, the opinion entered on May 5, 1999 is VACATED, and the appeal is restored to the calendar for oral reargument at a date and time to be announced.