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June 20, 2007

The sentencing transcript in Kimbrough

In this prior post, I discussed some of the issues (and linked the cert papers) related to the Supreme Court's cert grant last Monday in Kimbrough v. United States, No. 06-6330, the crack sentencing case.  I have since had a chance to review the transcript fromt the district court sentencing in Kimbrough, which I provide for downloading below.

In an effort to putting aside all the intricate legal issues related to Booker and 3553(a) and guideline provisions, I would like to read comments from folks after they review this transcript on the most basic and essential question: was the sentence given by Judge Raymond Jackson to Derrick Kimbrough on April 15, 2005 reasonable?

Download kimbrough_sentencing_transcript.pdf

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Comments

I'm not joking, by the way.

It depends on what one understands by "reasonable." If "reasonable" means, "The product of the exercise of the human faculty of reason," then the sentence was clearly reasonable. If, however, "reasonable" means, "within the range of what two out of three appellate judges think is appropriate," then the sentence was unreasonable (based on the Court of Appeals' decision). If "reasonable" means, "within the range of what district judges should be empowered to do," then, in my opinion, the sentence imposed is reasonable.

In the end, SCOTUS has got to decide what it wants out of "reasonableness review" by the Courts of Appeals. The Supreme Court could decide that they want loose review or tight review, or, God forbid, they may try to articulate some intermediate level of scrutiny. Until the Court gives a strong signal to the Courts of Appeals about what they expect out of appellate review of sentences, you have to ask what the questions means before you can answer it.

Mark

Posted by: Mark | Jun 20, 2007 5:10:28 PM

"I would like to read comments from folks ... on the most basic and essential question: was the sentence ... reasonable?"

Why? That's not the question on which cert was granted. The questions the court took were, roughly, whether the sentencing court could disagree with the crack-powder cocaine disparity and what factors it could consider in doing so. That is, they address procedure, not substance. They are, indeed, somewhat odd questions, having an academic air about them that I would have thought the court would not necessarily like, but there you are.

Beyond that, I'm with the judge that 180 months was too long unless there's something more I don't know about. I mean, we've got a one-instance possession-with-intent-to-distribute crack and powder cocaine and a gun in the car. By a fellow with only misdemeanor priors. It's a little hard to imagine why a sentence of 15 years was necessary in this case.

Finally, I hope that some amicus points out to the Court the significance of what defense counsel said, that the presentence report was pretty ordinary and that that was significant. And what the judge said, that factors like employment are important. With respect to recidivism, a major 3553(a) consideration, there are studies showing that factors the guidelines ignore, such as steady employment, are incredibly important. The Court should be made aware of this crucial fact. The Guidelines have alway been off base in dictating that such "ordinary" factors could not be considered.

Posted by: David in NY | Jun 20, 2007 6:01:15 PM

We cannot make a judgment about whether this sentence was reasonable form the transcript. Clearly the court was dissatisfied with the sentencing guidelines because they are course-grained. Course-grained guidelines do not differentiate between provocations and the State’s responses to those provocations, thereby mixing apples and oranges. But the court did not use a fine-grained system for making its own sentencing decision.

To be reasonable, I believe a sentence must be coherent, purposeful, proportional, parsimonious, fair and cost-effective. It will be interesting to see whether the Supreme Court insists on fine-grain sentencing and whether it outlines a framework for doing so. I believe they have set the stage for doing so over the last few years, but time will tell.

Posted by: Tom McGee | Jun 20, 2007 6:31:11 PM

Once again, we have a case where the Guidelines range was enhanced by judicial fact-finding, viz. the finding that Kimbrough committed perjury on the stand.

That is what is so whacked about this whole line of cases: The Government is the beneficiary of judicial fact-finding that ratchets the Guidelines range up, and then it objects when the district court "downward departs" to more or less the Guidelines range that would have applied absent the judicial fact-finding. Welcome to the world of "remedial Booker" -- a world that I predict will be coming to end sometime soon.

Posted by: Aaron | Jun 20, 2007 8:12:30 PM

Bottom line: The guy got 15 years for possession of crack and a gun. The prosecution asked for 19-22 years. It is hard to imagine that such a small deviation from the guidelines could be reversable if Booker/Blakely means anything. The judge made a record of his reasons, and there were multiple reasons. Even if some weren't proper (crack is bad), others (the guy had been a more or less good guy all his life), ought to be enough to justify at least four years of slack.

Posted by: ohwilleke | Jun 20, 2007 9:22:19 PM

I think Jackson was a judge at our moot court competition last year. It's impossible not to recognize his incredible pomposity in referring to himself as "the Court" every ten seconds--he couldn't even stop when giving comments to the teams afterwards. "The court feels that you did an excellent job. The court wishes your brief contained more analysis on X point." What a miserable human being.

Posted by: Nym | Jun 21, 2007 2:07:49 AM

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Posted by: DFDF | Jul 29, 2007 1:17:38 AM

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