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November 3, 2005

The government's argument against crack cracking the guidelines

As detailed in this recent National Law Journal article, a number of district courts have used their Booker discretion to adjust downward the 100-to-1 sentencing disparity between crack and powder cocaine under the federal guidelines.  (Many of these ruling are linked at the end of this post.)  As of yet, no circuit has ruled on whether the resulting sentences that deviate from the guidelines are reasonable, but I have heard that this issue is being appealed by the government nationwide.

Filling in the story, I recently receive a copy of a government brief recent filed on this issue in the First Circuit case of US v. Pho, No. 05-2455.  The government's opposition to the sentence adjustment based on the crack disparity is quite interesting, and I provide the brief for download below.  Here are a key passages from the brief's introduction:

The issue on appeal is not whether it was reasonable for the district court to deviate from the advisory Guidelines range under the particular circumstances of the defendants' cases, but whether, in all crack cocaine cases, it is reasonable for courts to adopt their own across-the-board rules regarding the appropriate crack/powder sentencing ratio....  The identical issue is now pending before the Second, Fourth, Sixth, Eighth, and Eleventh Circuits....

The district court's categorical rule is unreasonable as a matter of law because it: (1) rejects Congress's express judgment concerning the appropriate level and relative severity of penalties for crack offenses; (2) would lead to significant and unwarranted sentencing disparities; and (3) conflicts with (a) the Supreme Court's admonition to take the Guidelines into account in all cases, (b) the case-specific focus of the sentencing statutes, and (c) traditional principles of discretionary decision-making.

Download govt_1st_cir_crack_brief.pdf

For coverage of some of the decisions on this issue from the blog, see:

November 3, 2005 at 01:13 AM | Permalink

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