A fascinating report on a Booker crack/cocaine oral argument

The First Circuit heard argument today in the consolidated cases of US v. Pho and US v. Lewis, which are appeals by the government from sentencing decisions by District Judge Torres in which he decided not to follow the guidelines 100:1 crack/powder ratio.  (Background on how Rhode Island became "ground zero" in the post-Booker debate over the sentencing disparity between crack and powder cocaine appears in this post, and more background on these cases and these issues can be found here and here and here.) 

Though an audio file with the argument may be available tomorrow, I am pleased to be able to report on the case today thanks to the fine work of Yale Law student Eric Citron.  (Eric said I could describe him as an "avid blog follower" or "sentencing junky," and he backed up these claims by noting that he voted for me in the Weblog Awards.)  Eric was at the oral argument, and he kindly wrote up a short account of what transpired.  His full, terrific, on-the-scene report can be downloaded below.  Here is his closing paragraph:

To sum up, all odds are with the government to win. Near the end of the argument, Judge Selya noted that while the SRA does demand that Judges reduce unwarranted disparity in sentences, "whether apples are being compared to apples, with respect to the issue of disparity, is in the first instance a matter for Congress and not for the courts."  Given this statement, I would expect a holding that while Judge Torres is to be commended for his conscientious weighing of the factors for and against the 100:1 ratio, the congressional determination is entitled to a great deal more deference than his actions showed.  Exactly how much more deference? That should be the hard part.

Download report_on_1st_cir. crack argument (12-7).doc