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October 24, 2007

Notable dissent from a denial of crack rehearing

Today the Third Circuit released its decision (available here) to deny rehearing in US v. Ricks which concerned whether judges can disagree with the guidelines crack/powder ratio.  Judge Ambro's adds a thoughtful dissent, which has this passage among a number of sound insights:

The panel’s opinion conflicts with the Supreme Court’s remedial opinion in Booker, which makes the Guidelines “effectively advisory” and requires district courts to consider all the factors of § 3553(a). In Ricks, the District Court considered the Guidelines’ sentencing range—which applied a 100:1 ratio—and rejected that range for what it considered to be a more reasonable punishment.  I cannot see why “meaningful consideration” cannot lead to carefully considered rejection of an advisory policy.

It is no answer to say that sentencing judges cannot reject the policy decision of Congress.  The whole Guidelines manual represents a policy decision of Congress.  In order to remedy a constitutional defect, Booker excised the provisions that previously made the Guidelines mandatory.  This made advisory Congress’s policy decisions as expressed in the Guidelines.

October 24, 2007 at 01:46 PM | Permalink

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Comments

The sentencing guideline range as a whole is advisory under Booker. That does not allow the picking and choosing of the various component parts.

Posted by: mjs | Oct 24, 2007 2:28:05 PM

mjs, that's debatable at best. What part of Booker does that come from?

Posted by: | Oct 24, 2007 2:55:20 PM

Third Circuit case law outlines a 3 step methodology that begins with an accurate computation of the guidelines as written. In the third step, the Court can revisit guideline issues but only through the "prism of individual circumstances" and not a categorical rejection of Congressional intent.

Posted by: mjs | Oct 24, 2007 3:15:35 PM

The question, mjs, wasn't what the Third Circuit thinks. The question was what Booker requires. In light of Cunningham, Rita, and the Solicitor General's concessions in Kimbrough and Gall, it seems clear that to avoid 6th Amendment problems, district courts must be able not only to look at a case through the "prism of individual circumstances" but also re-evaluate the balancing the guidelines gave to other sentencing factors, such as the "seriousness of the offense." Maybe the Court will change its mind and reject the SG's concession that district judges are not generally bound by the principles in the guidelines, but right now, the Third Circuit's decision isn't very defensible.

Posted by: David in NY | Oct 24, 2007 3:23:22 PM

You may well have cited Third Circuit precedents accurately, but the Supreme Court is in the process of deciding whether those precedents are valid. The transcript of the oral argument suggested that, at the very least, it is a close call.

Posted by: Marc Shepherd | Oct 24, 2007 3:23:48 PM

In addition to the constitutional problems as set out in Booker, the Third Circuit had already decided the opposite in U.S. v. Gunter (which established the 3-step methodology you cite), thus making the panel decision in Ricks particularly egregious. Of course, mjs, if you had read the dissent, you would already know this.

Posted by: | Oct 24, 2007 3:34:55 PM

Besides 3rd Circuit precedent, why is the court even deciding this case? Kimbrough, already argued before the Supreme Court, deals with this precise issue. The case should have been stayed pending Kimbrough's outcome.

Posted by: MEK | Oct 24, 2007 4:22:31 PM

Also, if we're to say that a district court can disregard the guidelines merely because they disagree with them on an overall (not individualized) basis, they will essentially be overruling Congress's policy judgments. Moreover, an accurate guideline computation--in every Circuit--is still a step in the process. The computation can't be changed simply because the district court disagrees with the math.

Posted by: MEK | Oct 24, 2007 4:24:52 PM

Yes, MEK, they would be overruling Congress's policy judgments. That's what "advisory" means. And it's about time we have an appellate judge who says it.

If the policy were mandatory, that would be fine; but then under Blakely, the factual predicate for its implementation would have to be found by a jury. Of course, you'd have to get Booker overruled to do that.

I agree that a court must correctly calculate the Guidelines, congressional policy and all, as an integral part of the process. What it does after that, though, is another matter entirely.

Posted by: | Oct 24, 2007 4:56:15 PM

What it does after that depends upon each Circuit's step-by-step process. Most seem to require an accurate computation of the guidelines and then an analysis of the 3553(a) factors. A total disagreement with the 100:1 ratio has no place in the 3553(a) analysis. It puts the district courts in the position of not only creating policy vs Congress, but also of having absurd disparities across the nation when it comes to crack sentencing, which brings us back to the entire purpose of the guidelines in the first place. Now, I agree that the ratio is unfair and should be scrapped or lowered, yet this end-run around Congress and the guidelines is ill conceived at best. In any case, Kimbrough and its companion case should (we hope) clarify these issues...

Posted by: MEK | Oct 24, 2007 5:04:03 PM

Where does 3553(a) say that consideration of the ratio "has no place"? Indeed, 3553(a)(1)'s reference to "the seriousness of the offense" would seem to put the issue front and center.

Yes, advisory Guidelines will produce disparity. As Justice Scalia said, that's why Congress made them mandatory. But Justice Breyer and the rest of the Court in Booker determined (for better or worse) that judge-based sentencing was more important than uniformity.

Either you have mandatory, jury-based Guidelines (and, thus, uniform sentences), or you have advisory, judge-based Guidelines (and, thus, disparate sentences). It really is that simple, despite the obfuscation nearly every court of appeals has employed since Booker.

Posted by: | Oct 24, 2007 5:15:33 PM

In addition to the constitutional problems as set out in Booker, the Third Circuit had already decided the opposite in U.S. v. Gunter (which established the 3-step methodology you cite), thus making the panel decision in Ricks particularly egregious. Of course, mjs, if you had read the dissent, you would already know this.

This is debatable as well. The original panel decision in Ricks confronted Gunter head-on. Gunter said a lot of different things. If you take the "verboten" passage along with the statements in Gunter that it was not creating a split with the First (Pho) and Fourth (Eura) Circuits, then Ricks may well be a fair reading of Gunter. Even so, the Supreme Court should wipe the slate clean soon enough. This dissent from denial of rehearing en banc is only relevant beyond the Ricks case if the Supremes read it while they're considering Kimbrough and Gall

Posted by: | Oct 24, 2007 7:53:50 PM

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