April 8, 2009
Little Sixth Circuit ruling flags enduring question over Kimbrough's reach
The Sixth Circuit today has a seemingly minor ruling today in US v. Vandewege, No. 07-2250 (6th Cir. April 8, 2009) (available here), in which the court remands for resentencing in a crack case. The case is blog-worthy, howevere, because a concurrence by Judge Gibbons spotlights an enduring question about the Supreme Court's work in Kimbrough. Here are snippets from her opinion:
Succinctly stated, Kimbrough held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 128 S. Ct. at 843-44. Neither Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests. See Maj. Op. at 3 (asserting that “[t]he Supreme Court has made it clear” that district judges may depart from the Guidelines based upon any policy disagreement and claiming that the Court has established a higher standard of review for such departures). Kimbrough instead expressly reserved the question as to whether a district court could categorically vary from the Guideline range based solely upon a policy disagreement with the Commission in an area other than the crack-cocaine disparity. Kimbrough, 128 S. Ct. at 575 (noting that the “crack cocaine Guidelines . . . present no occasion for elaborative discussion” of the larger question of district courts’ ability to categorically disagree with the Commission’s policy decisions). This was because the crack-cocaine Guidelines did “not exemplify the Commission’s exercise of its characteristic institutional role” of gathering “empirical data and national experience” and adjusting the Guideline range accordingly. Id. (internal quotation and citation omitted); see also Spears, 129 S. Ct. at 842-43 (noting that Kimbrough’s holding allowing for categorical departures based upon policy disagreements applied only as to sentences for crack or cocaine offenses). The Supreme Court only hinted that if a district court could categorically depart from the Guidelines range in an area where the Commission has exercised its “characteristic institutional role,” closer scrutiny of such a variance may be required. Kimbrough, 128 S. Ct. at 575 (“[C]loser review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails to properly reflect § 3553(a) considerations even in a mine-run case.” (internal quotation and citation omitted)). Kimbrough has thus not “made it clear” that district courts may vary from the Guidelines based solely upon any policy disagreement. Maj. Op. at 3.
Applied to the present case, this debate over Kimbrough and Spears’s portent is purely academic. Vandewege’s appeal presents us only with a defendant convicted of distributing cocaine, an area where the district courts’ authority to categorically depart from the Guidelines’ policy is clear. We therefore have no occasion or authority to issue any holding bestowing upon district courts the carte blanche power to reject all policy decisions made by the Sentencing Commission, the dicta of the majority notwithstanding. With these observations, I concur in the judgment of the court.
April 8, 2009 at 10:17 AM | Permalink
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Why is there even a debate about this?
This idea that Kimbrough and Spears can only be applied to the crack cocaine guideline is grossly off-base. And the fact that I'm starting to see this argument being raised by AUSAs and now in this concurrence is alarming to me. How far will some go to not recognize the impact of an advisory Guideline system? Are they just asking for another clarification from the Supreme Court which, in my mind, should be unnecessary?
In our system, precedent is applied not just to cases that have the exact same facts, but to similar situations. This should not be a controversial idea. Yet, strikingly, applying Kimbrough and Spears outside the crack Guideline seems to have garnered debate.
Contrary to Judge Gibbons' assertion, the Supreme Court's holding in Kimbrough was that all guidelines, including the crack guideline, are advisory. Kimbrough, 128 S.Ct. at 564 ("We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory."). It was in dicta where the Court distinguished between empirically-based and non-empirically-based Guidelines. Based on this dicta, the Court then held that a district court's disagreement on policy grounds from non-empirically-based guidelines is permitted and should be deferred to.
At best, therefore, Judge Gibbons' description of Kimbrough's holding is only partially correct. Taking the most narrow view of the Court's holdings in Kimbrough and Spears, the established precedent is that a judge may categorically reject the policy of a guideline when that guideline is not empirically based (which, by the way, is most guidelines).
The error in Gibbons’ concurrence is that she goes too far when she states that the Court "expressly reserved" whether the opinion should be applied "in an area other than the crack-cocaine disparity." The citation she uses to support this assertion does not do the heavy lifting she claims it does, for that cite merely reserves for another day the question of how Kimbrough should be applied to non-empirically-based Guidelines.
Because most of the Guidelines (at least the most frequently used ones) are the result of Congressional meddling and/or are not supported by empirical analysis, I suggest that the question left open in Kimbrough is rather narrow.
Posted by: DEJ | Apr 8, 2009 11:45:55 AM
What a stupid opinion. While her reading of what may or may not be dicta may or may not be correct and while it may or may not be true that there may or may not be certain questions that the Supreme Court may or may not have answered in its previous opinions, it nevertheless remains true that IF she is correct the only way anyone is going to find out is IF a set of judges rules in the opposite way than she desires, and THEN it gets appealed, and THEN the Supreme Court has a chance to rule on it one way or another.
Power abhors a vacuum. If the Supreme Court doesn't like that, they don't have to create the vacuum. But this endless hand-wringing over what the SC may or may not have said is inanity, especially when, as the Judge herself observes, it makes no difference whatsoever to the disposition of the case.
Posted by: Daniel | Apr 8, 2009 11:48:24 AM
The fact of the matter is a close examination of the Guidelines shows that the Commission has rarely (if ever) acted "in the exercise of its characteristic institutional role" as directed by Congress. See, The Ongoing Struggle by Amy Baron-Evans at www.fd.org, proving the fallacy of the "Guidelines-contain-all-the-3553(a)-factors" justification, and showing that the Commission has rarely provided the justifications for the amendments to the Guidelines that would constitute its exercise of its institutional role. If an attack on the crack cocaine guidelines is justified by the lack of empirical evidence to support the 100-to-1 ratio, then any other guidelines that suffers from a similar lack should likewise be open to attack. The emperor has no clothes! Will we recognize that, or continue to worship a naked emperor?
Posted by: Sumter L. Camp | Apr 8, 2009 12:21:35 PM
WHY DO GUIDELINES THAT ARE PRESCRIBED BY CONGRESSIONAL DIRECTIVE SUBJECT TO LESS DEFERENCE THAN THOSE ENACTED BY THE COMMISSION
Posted by: Da Man | Apr 10, 2009 12:31:25 PM