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February 24, 2006

Fourth Circuit on crack (guidelines, that is)

Capping off a big (and discouraging) Booker week for the Fourth Circuit, a panel today in US v. Eura, No. 05-4437 (4th Cir. Feb 24, 2005) (available here) has reversed a district court's decision to vary from the 100:1 crack/powder ratio.  Here is the panel's introductory account of its holding:

The principal question presented in this appeal is whether a district court in the post-Booker world can vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress.  For the reasons stated below, we conclude a court cannot vary from the sentencing range in such a manner.

Commentary (likely to be quite critical) will follow once I have a chance to read the opinion closely.

UPDATE:  I have only made it to page 10 of Eura and I am already outraged.  There is a passage on page 10 which rewrites the plain terms of a clear statute.  On page 10, the majority in Eura, in the course of describing post-Booker sentencing, states: "If a sentence within the sentencing range serves the factors set forth in § 3553(a), the court should impose a sentence within that range that best serves those factors."   But this is clearly and absolutely not what Congress has told sentencing courts to do in section 3553(a) of the Sentencing Reform Act.  The clear plain textual command of 3553(a) set forth by Congress states very simply: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."   Tellingly, the Eura majority never discusses this provision of 3553(a).

As I read Eura, it strikes me as an example of judicial activism at its worst.  I wonder if those who decry judicial activism in other contexts will step up to complain about this example.  I wonder if any purported textualists on the Fourth Circuit or on the Supreme Court might be inclined to do something about the Eura panel's failure to follow Justice Scalia's simple aphorism that the "text is the law, and it is the text that must be observed."

MORE:  The sad and depressing reality of Eura continues on page 12 when the majority suggests the district court's decision to sentence the defendant to 10 years (rather than the 11.5 years the guidelines advised) some how serves to "subvert Congress' expressed will."  By my lights, the Eura decision subverts Congress' explicit text by rewriting the requirements of 3553(a).

In addition, by ordering the district court to resentence the defendant within the guidelines, the Eura court also subverts the constitutional holding in Booker.  How are the guidelines "effectively advisory" if the district judge lacks discretion to deviate from them in this case?  Notably, the guideline range in this case was established through judicial fact-finding of an obstruction of justice enhancement, and so the merits portion of the Booker opinion (and thus the Constitution itself) has been transgressed by the result in Eura

February 24, 2006 at 03:18 PM | Permalink

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Comments

Wait until you get to the end, Doug - another dictation of the sentence upon remand. No variance the second time around, either.

Posted by: JDB | Feb 24, 2006 3:50:28 PM

Prof. Berman: FWIW, I have always kept in mind when approaching anything emanating from the Fourth Circuit the truism that there, "the veneer of modernity is quite thin."
I think expecting intellectual honesty from those judges, when they are confronted with an opportunity to punish, support the government, or support the police, is expecting too much.

Any bets on whether the defendant was a minority?

Posted by: a lawyer | Feb 24, 2006 4:19:35 PM

While one can argue that it is not in keeping with the spirit of the Booker remedy opinion, or a proper exercise of statutory interpretation, to basically make Guidelines floors mandatory while the ceilings become advisory, it is completely incorrect to argue that such judicial actions "transgress" or "subvert" the Booker merits opinion. Unless and until Harris is overruled, judicial factfinding that leads to mandatory minima are constitutionally fine. Thus, even if the Fourth Circuit had explicitly said that a downward departure is always forbidden while an upward departure is always permitted, this would not violate the Sixth Amendment.

Posted by: law student | Feb 24, 2006 5:27:45 PM

Law student,

You are missing the point. While Congress could (might still?) establish a topless guidelines system post-Blakely, it has not done so. We have "advisory" guidelines. If, as the wise Prof. B notes, trial judges lack the ability to impose a sentence below the advisory guidelines (calculated with judicial factfinding) at least when individual circumstances warrant (subject to reasonableness review), we are back to a prohibited mandatory system.

Back to school, law student.

Posted by: no | Feb 24, 2006 6:20:39 PM

This case illustrates why everyone knows that the fourth circus is the most activist circuit in the country.

Posted by: Lawyer | Feb 24, 2006 9:04:05 PM

Thank God for the Fourth Circuit. Not because their decision is right (um, I mean "correct"), but because they are brazen enough to intentionally mis-state 3553 and make a lower sentence than the Guidelines sentence unavailable post-Booker. We need at least one Circuit to be so direct. A lot of other Circuits are trying to achieve the same end as the Fourth without being honest about it, and that is a far more dangerous (and lawless) proposition. Now, we can have a clear Circuit split, and the Supremes can decide whether they really want advisory Guidlines or only the veneer of "advisory" Guidelines.

I am skeptical that the Supremes really want advisory Guidelines, but only a clear Circuit split has the possibility of resolving the issue.

So, don't be so quick to bash the Fourth (from the Left) and the Ninth (from the Right). It's the Muddled Middle that drives me nuts, because they so often undermine the Rule of Law, or at least make the development of the law so difficult.

Mark

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