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September 28, 2005

More strong work on the crack disparity issue

As a fitting follow up to the Seventh Circuit's recent discussion of the crack/powder disparity issue, I am pleased to report on (and make available for downloading below) the thoughtful and thorough recent opinion of US District Judge William Smith in US v. Perry, No. 04-089S (D.R.I. Sept. 20, 2005).  Covering a lot of ground with many insights, Perry provides particularly extensive coverage of the crack issue and the approaches taken by district courts post-Booker.  Here is a key portion of the opinion's introduction:

The Defendant urges this Court to vary from the Sentencing Guidelines and impose only the statutory minimum sentence.  Resolution of this issue requires this Court to delve into the thicket of the debate over the sentencing discrepancies between crack and powder cocaine -- a debate that has simmered for many years but has been refueled recently by the Booker/Fanfan decision.  For the reasons set forth in the second half of this memorandum, this Court finds that the crack/powder disparity cannot stand up to the scrutiny of analysis under 18 U.S.C. § 3553. Therefore, this Court will vary from the advisory sentencing range established by the Sentencing Guidelines and impose the statutory minimum sentence of 10 years.

And the second half of the opinion culminates with these insights:

The growing sentiment in the district courts is clear: the advisory Guideline range for crack cocaine based on the 100:1 ratio cannot withstand the scrutiny imposed by sentencing courts when the § 3553 factors are applied.  This Court, too, will not blindly apply the Guideline range, for to do so would be to disregard the Supreme Court's directive in Booker/Fanfan to fashion a reasonable sentence in light of the § 3553(a) factors.  As to the appropriate ratio to apply, this Court believes a 20:1 ratio (as suggested by the Commission in its 2002 report) makes the most sense.

Download USA_V_PERRY.pdf

September 28, 2005 at 05:35 PM | Permalink

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