December 5, 2006
Eighth Circuit follows the herd on crack sentencing
In an en banc ruling today in US v. Spears, No 05-4468 (8th Cir. Dec. 5, 2006) (available here), the Eighth Circuit has adopted the standard lower court view of post-Booker variances based on the crack/cocaine sentencing disparity. Here is the official summary of the long opinions in Spears:
[Riley, Author, with Chief Judge Loken, Lay, Wollman, Murphy, Bye, Melloy, Smith, Colloton, Gruender, Benton, and Shepherd, Circuit Judges] Evidence was sufficient to support conspiracy to distribute crack and powder cocaine based on witness testimony and defendant's videotaped confession. Admission of prior 2000 felony conviction was not an abuse of discretion. District court's categorical grant of a downward variance using a 20:1 powder cocaine to crack cocaine quantity ratio rather than 100:1 ratio was error. Neither Booker nor section 3553(a) authorizes district court to reject 100:1 quantity ratio. District court failed to perform section 3553(a) analysis and conduct an individualized, case-specific evaluation of the facts or of the defendant. Case is remanded for resentencing. Judge Bye and Lay dissent.
A few quick comments on Spears before I get to read the opinions closely:
1. It is notable and very disappointing that Judge Diana Murphy, who was chair of the US Sentencing Commission when it produced its 2002 report stating the crack guidelines undermine the goals set forth by Congress in 3553(a), does not write in this case. She should know more about this issue than perhaps any other judge in the country, and yet she is silent here.
2. It is a below-guideline crack sentence that was reversed by the Eighth Circuit that is being reviewed by the Supreme Court in Claiborne. If defendant Spears seeks cert, it seems likely he should get a GVR after SCOTUS decides Claiborne this summer.
Some related posts on crack sentencing after Booker:
- Extended account of USSC crack hearing (with lots of links)
- The facts and decisions in Claiborne and Rita
- The district court sentencing in Claiborne and cert briefing
UPDATE: Because the dissent in Spears adopts many ideas in the amicus brief I signed in this case, I am obviously partial to its basic approach to these issue. I find especially compelling this articulation of the issue by Judge Bye:
Under the current system (which Congress has chosen not to change following Booker), Congress can only advise district courts on the imposition of a particular sentence within a particular range. Thus, if we start from the premise the guidelines' system is advisory, which we must, any advice given within such a system cannot be binding by its very nature, no matter whether the advice is on matters of broad policy or otherwise.
That said, I think both opinions in Spears provide effective accounts of the latest developments and main viewpoints of the circuits on the crack/cocaine sentencing debate. Anyone interested in catching up on these debates ought to start by reading Spears.
December 5, 2006 at 11:37 AM | Permalink
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Tracked on Dec 5, 2006 1:15:10 PM
I happened to sit in on the DC Circuit's oral argument in one of two cases presenting this question (a panel of Ginsburg, Randolph, and Rogers) and it seemed exceedingly likely that the defendant would win in that court. This was a case in which the district court believed it lacked the power to depart from the 100:1 ratio.
Posted by: Tom Goldstein | Dec 5, 2006 8:43:38 PM
The court took a fairly narrow issue in my view. It would have a much harder time reversing had the district judge used the reasons behind the push to lower the powder/crack ratio and applied them to the 3553(a) factors. Instead, it gave the Court of Appeals an opening by categorically adopting a ratio contrary to the statutory scheme - witness Judge Bye's inability to pursuade any active judge to join him.
Posted by: Tom | Dec 6, 2006 3:59:16 PM