Analysis

UPDATE Tuesday a.m. The U.S. Sentencing Commission’s latest report to Congress on cocaine sentencing can be found at the Commission’s website, under “Report to Congress — Federal Cocaine Sentencing Policy.” It recommends that Congress alter the 100-to-1 crack-to-powder ratio, but, in the meantime, proposes a reduction in the Sentencing Guideline range for cocaine offenses. That change in range will take effect Nov. 1 unless Congress objects. (The report is 202 pages long.)

Congress in 1986 adopted a federal sentencing policy that those who commit crimes involving “crack” cocaine are to be punished on a 100-to-1 ratio compared to those whose crimes involve cocaine in powder form. The U.S. Sentencing Commission for years has asked Congress to narrow the difference, to no avail. Yet Congress has never ordered the Commission to put the ratio into the federal Sentencing Guidelines. And federal trial judges in recent months have been experimenting with easing up, comparatively, on cocaine crime sentences. That combination of conflicting circumstances may be sorted out by the Supreme Court, in the new Term that starts on Oct. 1.

Here is an example of how the 100-to-1 ratio works: an individual who deals five grams of crack cocaine faces the same sentence as a defendant who deals 500 grams of powder cocaine under the Guidelines.

On Monday, the Court — long reluctant to review the 100-1 crack-to-powder ratio — opted to grant review of a clear-cut test case on the issue. It is Kimbrough v. U.S. (docket 06-6330). The diligent efforts of a federal public defender in Alexandria, VA. — Michael S. Nachmanoff — appeared to have helped persuade the Court that the time had come to take on the question.

Because the case raises the question of a federal judge’s power to set a sentence that may fall below a Guideline range, the Court seems to have concluded that it should expand its interest in below-range sentencing to include the basic controversy over crack vs. powder sentencing in the new era of advisory rather than mandatory use of the Guidelines. The Court had signaled its interest in below-range sentencing by agreeing to hear this Term the case of Claiborne v. U.S. (06-5618), but that case has been ordered vacated as moot because of the death of Mario Claiborne. On Monday, the Court, along with granting review of the Kimbrough case, also announced that it will consider next Term another case on the core question of the “reasonableness” of below-range sentences. That new case is Gall v. U.S. (06-7949). (The Court also has apparently decided to go ahead, this Term, with a decision in the Guidelines case of Rita v. U.S., 06-5754, testing whether a sentence within a Guideline range is to be presumed on appeal to be reasonable.)

Relying on the Court’s 2005 decision in U.S. v. Booker turning the Guidelines regime into an advisory scheme only, the Kimbrough petition asks the Court to cliarify how much authority — if any — sentencing judges have to vary the 100-to-1 ratio in order to ensure that punishment for a cocaine conviction is “sufficient but not greater than necessary” and does not lead to “unwarranted disparity” in sentencing. It asks two questions, paraphrased here:
(1) may a District Court judge consider the Sentencing Commission’s repeated reports finding that the 100-to-1 crack vs. powder disparity exaggerates the seriousness of crack crimes, and (2) how is a District Court to balance the various factors that Congress has told sentencing judges to consider, especially avoidance of sentencing disparity, under the Guidelines regime.

Nachmanoff’s client is Derrick Kimbrough, a Gulf War veteran and construction worker, who was arrested by city police officers in Norfolk, Va., with another man and charged with conspiracy with intent to distribute cocaine and possession with intent to distribute it. Prosecutors said that the two were found with 56 grams of crack cocaine and 92.1 grams of cocaine powder. Kimbrough had prior misdemeanor offenses, but no prior felonies.

All things considered, including a firearm offense, Kimbrough faced a sentence in a Guideline range of 228 to 270 months — that is, 19 to 22 1/2 years. His defense lawyer, arguing that the Guidelines regime directs a judge to take in a variety of factors, urged the trial judge to set a total sentence of 180 months — or 15 years. On the crack vs. powder issue, the lawyer noted that Kimbrough actually had more powder than crack when arrested (almost twice as much), and called attention to the findings of the Sentencing Commission, in repeated reports, that the ratio exaggerates the relative harmfulness of crack.

The judge, noting that the sentencing law directed the court not to impose a sentence greater than necessary to serve the sentencing factors, called a sentence of 19 to 22 1/2 years “ridiculous.” The judge said that the 100-to-1 punishment disparity drove the offense level in the case higher than necessary to do justice. Those statements were based on the Sentencing Commission’s views. Following the 100-to-1 factor, the judge concluded, would result in an inappropriately high sentence. The term was set at 180 months — that is, 15 years. That, the judge said, was “clearly long enough under the circumstances.”

The Fourth Circuit Court, in a brief opinion reacting to the government’s appeal of the sentence, struck down the 180-month term. Based on its basic ruling on the issue in U.S. v. Eura (a case now pending in a petition in the Supreme Court, 05-11569), the Circuit Court ruled that a District Court may not vary from the advisory sentencing range on the basis of the 100-to-1 ratio or on the views of the Sentencing Commission. “In arriving at a reasonable sentencing,” that Court had said in the Eura case, “the District Court simply must not rely on a fact that would result in sentencing disparity that totally is at odds with the will of Congress.”

The Justice Department has been opposing Supreme Court review of the crack vs. powder question, and has done so, for example, in the Eura case. In response to Kimbrough’s appeal, the Department suggested that the Court might want to hold it until it had decided the Claiborne case, or perhaps even deny it outright because of the government view that judges cannot set a sentence below the range simply because they disagree with a sentencing policy adopted by Congress — that is, the 100-to-1 ratio. The government also had contended that there is no split in the Circuit Courts on that question.

But Kimbrough’s petition and reply argues that, as of now, there is a definite split. “On one end of the spectrum are the Fourth and Eighth Circuits, which have held that under no circumstances can a district court consider either the ratio or the [Sentencing Commission] reports…In the middle is the dissenting judge in the Fourth Circuit, whose position has been adopted by the Seventh and Eleventh Circuits, and possibly by the Second Circuit, which would permit a district court to use the Sentencing Commission reports in evaluating the case before it….Finally, on the other end of the spectrum is the Third Circuit, joined by the dissenting judges in the Eighth and Eleventh Circuits, which would allow a district court to consider the 100:1 ratio….Accordingly, this Court should step in now to resolve the issue.”

The case was ready for the Court’s consideration in February, but it took no action on it. Then, in March, public defender Nachmanoff notified the Court that the split had deepened further, with the D.C. Circuit Court directing sentencing judges to consider the 100-to-1 ratio “and the problems it raises” in crack cases — thus aligning that Circuit with the Third Circuit’s view.

In the other Guidelines case granted review by the Justices on Monday, the Gall case, the Court chose another case out of the Eighth Circuit (from which Claiborne had also come). Here is the question it presents: “Whether, when determining the ‘reasonableness’ of a district court sentence under United States v. Booker, 543 U.S. 200 (2005), it is appropriate to require district courts to justify a deviation from the United States Sentencing Guidelines with a finding of extraordinary circumstances.”

The case involves Brian Michael Gall, who had pleaded guilty to taking part in a conspiracy to distribute “ecstasy” (or MDMA) in Iowa in 2000. He dropped out of a distribution ring, finished college, and started his own business, and was not again involved with drugs. In 2002, after he had moved to Arizona, federal agents approached him about the prior activities of the Iowa ring. He admitted his involvement, and agreed to return to Iowa to face charges.

He pleaded guilty to a conspiracy charge. The guideline range for his crime was 30 to 37 months. He was sentenced to three years on probation, based largely on his conduct since the crime had occurred. The Eighth Circuit reversed, finding that the below-range sentence was not sufficiently supported by “extraordinary justifications.” The Supreme Court sat on the case until after the Claiborne matter had been resolved, and then granted it, for review in the next Term.

Gall’s petition was filed by Jeffrey T. Green for the Norfhwestern University Supreme Court Practicum. The Justice Department had urged the Court to hold the case for this Term’s Guideliines cases.