May 15, 2007
Should SCOTUS now just remand Claiborne in light of the new USSC report?
The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start. In the hope generating a lawyerly debate, I'll start with these provocative questions:
1. Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?
2. Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?
Put simply, the new report and amendments from the USSC provides powerful new evidence about the reasonableness of crack sentences, especially for low-level offenders like Mario Claiborne. Though I thought that Claiborne's below-guideline sentence was reasonable before the USSC latest analysis, the USSC report provides a lot of new information and perspective on any decision to give a below-the-old-crack-guideline sentence.
As question 2 suggests, this issues seems lively enough to justify soliciting input from the parties. And, in my view, some (or all) of the lawyers might reasonably decide their client's interests would be best served by a simple remand without SCOTUS consideration on the merits.
(Of course, I would be greatly disappointed if the Supreme Court does not fully address post-Booker sentencing realities this term. But SCOTUS can and will speak to many post-Booker issues in Rita even if it were to remand Claiborne without any discussion of the merits.)
May 15, 2007 at 04:37 PM | Permalink
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I have a feeling that after Claiborne and Rita arrive, you're going to wish they had waited.
Sort of like Booker.
Posted by: Marc Shepherd | May 15, 2007 5:03:21 PM
I have a sentencing set with a client who is charged with possession of both crack cocaine and MDMA and I wanted to show the Judge essentially that my client's guidelines will have dropped based upon these new amendments and argue for a downward variance. However, as I look over the amendments and the example set forth my client's sentence remained the same. Then looking closer at the example provided in USSG sec. 2D1.1, Application Note 10D(ii), it appears that people can actually receive a higher base offense level for selling less drugs.
Here is my hypothetical following the example in application note 10(D)(ii):
Client A possessed 100 kilograms of marijuana and 100 grams of cocaine base.
It appears from the example that I take 100 kilograms of marijuana and find the offense level which is a level 26 pursuant to 2D1.1(c)(7). I then go to the table in Application Note 10D(i)(II) and the listed marijuana equivalency for a level 26 is 5 kilograms of marijuana. According to the example, I multiply 100 grams of cocaine base by 5 kilograms of marijuana and come out with 500 kilograms of marijuana. Next I add 500 kilograms of marijuana + 100 kilograms of marijuana and this gives 600 kilograms of marijuana with a corresponding offense level of 28 pursuant to 2D1.1(c)(6).
Client B possessed 80 kilograms of marijuana and 100 grams of cocaine base.
It appears from the example that I take 80 kilograms of marijuana and find the offense level which is a level 24 pursuant to 2D1.1(c)(8). I then go to the table in Application Note 10D(i)(II) and the listed marijuana equivalency for a level 24 is 16 kilograms of marijuana. According to the example, I multiply 100 grams of cocaine base by 16 kilograms of marijuana and come out with 1600 kilograms of marijuana. Next I add 1600 kilograms of marijuana + 80 kilograms of marijuana and this gives 1680 kilograms of marijuana with a corresponding offense level of 32 pursuant to 2D1.1(c)(4).
I cannot imagine that this is what was intended and maybe it is a misprint. Perhaps I am just reading this wrong. Anyone else?
Posted by: Jason Hawkins | May 15, 2007 6:57:41 PM
They'd just respond by saying the guidelines are not retroactive and even if they were, there are changing standards of reasonableness which are best reflected in the guidelines (I don't believe that, but that's what the Court would say), and that this latest change is just more evidence why the guidelines are so important and should be presumtively reasonable (load of crap).
Posted by: Bruce | May 15, 2007 11:50:30 PM
No, the Court should not wait to decide Claiborne. The main issue is one that affects all federal sentencing appeals: how much deference should be given to district-court sentencing decisions, particularly for outside-the-Guidelines sentences? This is a much more important and fundamental question than simply crack-related sentencing. And the Court should not wait to give the Courts of Appeals guidance -- every sentencing appeal is affected.
Posted by: Mark | May 16, 2007 4:27:27 PM