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November 28, 2005

Eighth Circuit discusses reasonableness of crack/powder differential

The Eighth Circuit today at the end of a long opinion in US v. Cawthorn, No. 05-1982 (8th Cir. Nov. 28, 2005) (available here) rejected a defendant's claim that "it was error for the court not to sentence outside the Guidelines range because it is always unreasonable to treat crack cocaine 100 times worse than powder cocaine."  Here is the heart of the Eighth Circuit's analysis:

The Seventh Circuit noted, in an unpublished opinion, "[defendant] has cited no case after Booker in which an appellate court has held that it is unreasonable not to give a defendant convicted of an offense involving crack a lower sentence than the one recommended by the guidelines."  United States v. Herron, 2005 WL 1691370, at *2 (7th Cir. July 20, 2005).  While we have not yet addressed the issue, the Seventh Circuit further reasoned "[g]iven the fact that this court has routinely upheld the differential against constitutional attack . . . , and, under the pre-Booker guideline system, rejected wholesale downward departures from the guideline on this basis . . . , it would be inconsistent to require the district court to give a non-guideline sentence based on the differential." Id.  We adopt this reasoning and hold sentencing within the Guidelines based on the crack-powder disparity is not inherently unreasonable.

Beyond the substantive importance of this (published) ruling, I am intrigued by the Eighth Circuit's express adoption of the reasoning of an unpublished decision from a sister circuit given the endless debate over reliance on, and citation to, unpublished opinions.  This is intriguing in part because, as detailed in this post, the Seventh Circuit put its crack-powder reasoning into a published disposition back in September.

November 28, 2005 at 11:54 AM | Permalink


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What is of greatest importance here is the careful wording -- note that the Court is NOT saying that a district judge cannot sentence below the guidelines on this basis, post-Booker, much less that it would be unreasonble for the district court to do so. Only that *if* the district court declines, then the appellate court will not reverse that decision.

Posted by: Peter G | Nov 28, 2005 10:30:49 PM

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