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June 7, 2006

Crack(ed) dicta from Judge Easterbrook for the Seventh Circuit

Though Howard Bashman notes here a Seventh Circuit opinion by Judge Frank Easterbrook for other reasons, sentencing fans will want to check out US v. Miller, No. 05-2978 (7th Cir. June 7, 2006) (available here), because it closes with strong dicta asserting that district courts cannot deviate from the 100:1 crack/powder ratio.  Citing and following Pho from the First Circuit and Eura from the Fourth Circuit, Judge Easterbrook was obviously interested in seizing the opportunity to reject this type of discretion after Booker.

Notably, in Miller, the government did not appeal the district court's decision to apply a 20:1 sentencing ratio, and thus it would appear that this key post-Booker issue was not fully briefed for the panel.  Moreover, the Miller court does not fully grapple with the fact that the 20:1 ratio has been urged by the Sentencing Commission as more in keeping with Congress's stated goals in 3553(a)(2).  I wonder if the Seventh Circuit panel's notable judicial sentencing activism will be noticed and assailed by the usual pundits who are quick to jump on sentencing decisions that favor defendants.

June 7, 2006 at 07:32 PM | Permalink

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