May 3, 2011
Shouldn't crack sentences within old guideline ranges no longer be presumptively reasonable?
The question in the title of this post is inspired by a relatively uninspiring final paragraph from a relatively minor Eighth Circuit ruling today in the cocaine case US v. Hill, No. 10-3421 (8th Cir. May 3, 2011) (available here). Here is the factual and legal lead up and the final paragraph that has me worked up:
Appellant Kevin Hill was convicted of three counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On appeal, the appellant claims [inter alia] that the district court ... erred in not granting a variance from the advisory guideline sentencing range of 188 to 235 months....
The appellant was charged with three counts of distribution of cocaine base (crack cocaine). The indictment alleged that the appellant had distributed a total of 7.8 grams of crack cocaine to a confidential informant on three separate occasions. However, he later confessed to distributing an additional 198 ounces of cocaine, and the use of his confession is the primary subject of this appeal....
Finally, the appellant contends that the district court erred in not granting a downward variance from the guideline range. He asserts that the ratio of crack cocaine to powder cocaine creates an unwarranted sentencing disparity within the meaning of 18 U.S.C. § 3553(a)(6)....
Here, the district court properly considered all the arguments, including the crack to powder cocaine ratio argument, and the 18 U.S.C. § 3553(a) factors and sentenced the appellant to the bottom of the advisory range. A sentence within the guidelines range is presumptively reasonable. See United States v. Vinson, 631 F.3d 476, 487 (8th Cir. 2011) (citations omitted). The district court did not abuse its discretion in sentencing the appellant to 188 months in prison.
I would need more information than what's provided in this opinion to come to a judgment as to whether Hill's 15.6-year sentence here for distributing 7.8 grams of crack cocaine to an informant is reasonable. But I long ago came to the judgment that the presumption of reasonableness for within-guideline sentencing ought not apply to within-guidelines crack sentences which the US Sentencing Commission had repeatedly and emphatically determined to be contrary to 3553(a)'s purposes. And now that crack guidelines have been reduced via statutes by Congress and new amendments by the Commission, I find it even harder to stomach the notion that within-guideline crack sentences imposed under defunct and unjust old law merit a presumption of reasonableness (a presumption which, to my knowledge, has never been rebutted)!
Again, to be clear, in the absence of more information about Kevin Hill's crimes and history, I cannot readily assail the decision to affirm his 15.6-year sentence here. But I can and do readily assail the decision to affirm this sentence by presuming the reasonableness of guidelines that Congress in 2010 determined were so bad that they needed to be dramatically reformed. The rationale of the Supreme Court's work in Rita was that a presumption of reasonableness for within-guideline sentence was permissible (though not required) to adopt because a within-guideline sentence generally indicated that both the USSC and a district judge assessed the need for a particular sentence under 3553(a) similarly. But in crack cases sentenced under the old guidelines, there is long line of USSC reports and actions as well as now clear Congressional reforms, indicating that the old guideline ranges were unfair and unjust.
In short, given that Congress has change crack sentencing laws to be more fair, why should the Eighth Circuit or other reviewing courts still declare sentences imposed under the old unfair guidelines essentially immune from substantive reasonableness review by mere invocation of the "presumption of reasonableness"? It just makes no sense, and perhaps reveals just how resistant some (most? all?) circuits are to developing a true common-law of sentencing even six+ years after Booker called upon them to do so.
May 3, 2011 at 03:17 PM | Permalink
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Except shouldn't the nearly 200 confessed grams also come into play since this is a sentencing? If you count those as proved beyond preponderance (and remember 200oz is 5,669g), then even under the new guideline I would suspect a substantial sentence would be indicated. My point being that even under a 100:1 ratio the 21 convicted grams are dwarfed by the confessed quantity, and I believe those are in play at sentencing, so long as the confession is validly obtained.
So I would ask you to make sure that the sentence even bothers with the 21g that were the basis of conviction, something that the quoted material makes me doubt.
Posted by: Soronel Haetir | May 3, 2011 4:32:41 PM
Fair point, Soronel, though it merely confirms my believe that these sorts of cases ought to be reviewed case-by-case rather than with an over-reliance on a presumption of reasonableness that Congress itself seems to have rebutted via the passage of the FSA.
Posted by: Doug | May 3, 2011 5:02:48 PM
Why...you ask ...ibecause it's the 8th Cir. Soronel misses the point. Of course the trial judge and Cir can and should consider relevant conduct. That has nothing to do with the crack powder ratio which raises his sentence by an approx 5 times regardless of the quantity.
Posted by: Steve Prof | May 3, 2011 5:18:13 PM
Just waiting for the know-it-all ..Bill Otis to chime in and enlighten on why the death penalty should have been the appropriate sentence here
Posted by: Steve Prof | May 3, 2011 8:29:27 PM
Rita was wrongly decided. But what I glean from Gall and its progeny is that the district courts, not the courts of appeals, are charged with developing the common law of sentencing. The message to the courts of appeals is clear: stay out of it.
Posted by: DS Hathaway | May 3, 2011 8:31:11 PM
Bill Otis, unlike myself, does not believe that the majority of felons are deserving of death sentences. So you'll be waiting a very long time for such a post.
As for myself, I believe most felons are deserving of death sentences due to the enormous range of lawful behaviors offered in the US. The freer a society is toward what it will tolerate the harder it should come down on those things it will not tolerate.
Posted by: Soronel Haetir | May 3, 2011 9:08:34 PM
"As for myself, I believe most felons are deserving of death sentences"
Soronel, would you please clarify that statement a little bit. I will use the comparison between Charles Manson, who is a pretty good poster boy for someone who deserved the death penalty, on one extreme and Martha Stewart, also a felon, on the other. Even further to the Martha side are those who, even though their offense was a felony, were only sentenced to a period of probation.
If you believe that "most" felons deserve the death penalty, at what point between the two extremes would you draw the line? One side of the line lives, the other side dies.
And just for the record, I am not opposed to the death penalty, just curious.
Posted by: Thomas | May 3, 2011 9:26:41 PM
"due to the enormous range of lawful behaviors offered in the US"
What country are you referring to? This may have been true at one point in the United States, but our states and federal government have been on an over-criminalizing rampage in the last 25-30 years.
Posted by: anon | May 3, 2011 10:59:43 PM
I would certainly say Stewart was deserving of execution and think she got off incredibly light, though I also question the jurisdiction in her case (I'm not sure the feds have the power to make lying to a federal officer criminal when not on a federal preserve like D.C. or Guam, mere possession of the land not being enough).
I would say that somewhere between 75 and 90 percent of felons should be executed, it of course becomes easier the higher the figure goes, until you reach close to the point that it takes Gall like behavior of voluntarily disassociating from an ongoing criminal enterprise in order to spare yourself.
Years ago I put forward the comment at: http://sentencing.typepad.com/sentencing_law_and_policy/2008/08/a-campaign-ques.html
I have since concluded that the percentages offered there are too low. Perhaps in the future I will conclude that even the 75 to 90 percent range is too low. But at least that post offers a way to make those choices.
Posted by: Soronel Haetir | May 4, 2011 12:01:28 AM
"I would certainly say Stewart was deserving of execution"
Posted by: Thomas | May 4, 2011 10:13:57 AM
I believe that due to her position on the board of the NYSE at the time of the offense. So, so long as the jurisdictional issue is set aside, then yes I believe she was very deserving of execution. Moreso than most convicted under similar circumstances.
Posted by: Soronel Haetir | May 4, 2011 10:34:43 AM
Thanks for your posts Soronel, most of us can now discount everything you post...your DP position is so extreme you label yourself a complete wacko but a nice one and render Bill Otis a left wing liberal by comparison ...
Posted by: Steve Prof | May 4, 2011 11:56:33 AM
If it helps I freely admit to being pretty much an anti-moderate on nearly every issue of political contention.
Posted by: Soronel Haetir | May 4, 2011 12:47:45 PM
"I believe that due to her position on the board of the NYSE at the time of the offense. So, so long as the jurisdictional issue is set aside, then yes I believe she was very deserving of execution. More so than most convicted under similar circumstances."
Now let's see if I remember correctly, Stewart was convicted of obstructing justice and lying to investigators but the judge threw out the securities fraud count. And for that you would give her the death penalty.
I have to agree with Steve Prof, "most of us can now discount everything you post...your DP position is so extreme you label yourself a complete wacko." I will take it a step further, you are seriously in need of some professional help.
Posted by: Thomas | May 4, 2011 7:01:18 PM