Another crack at an amicus brief on crack sentencing

As detailed in this post, last month Professor Mark Osler (with some input from me) drafted an amicus brief which was to be filed in the First Circuit defending the reasonableness of a district judge's decision not to follow the guidelines' 100-1 crack-powder ratio.  However, before that brief was filed, the First Circuit spoke to this issue through its questionable Pho decision (basics here, critical commentary here and here and here). 

After seeing our draft amicus effort, Mark and I were contacted by a lawyer in the Ninth Circuit who was facing an issue on the flip side of Pho: in US v. Starks, the district court did not want to follow the guidelines' 100-1 crack-powder ratio, but the government convinced the court that, even after Booker, it lacked authority to sentence outside the crack guidelines.  Concerned that the ruling in Starks eviscerates the merits ruling in Booker and makes the guidelines mandatory again, we've flipped our amicus brief to argue to the Ninth Circuit that the district court's treatment of the guidelines as essentially mandatory is an error of law.

This latest amicus effort was filed today, and I have made it available for download below.  Here are selections from the brief's summary of the argument:

The District Court erred in holding that the guidelines are mandatory in the absence of individualized circumstances.  In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the federal sentencing guidelines are now advisory, not mandatory.  Importantly, Booker did not include the limitation read into that decision by the district court and the government — that a sentencing judge's use of discretion may result in a non-guideline sentence only when some unusual or unique fact exists in the case.  At issue is not the reasonableness of the sentence imposed, but the process; the case should be remanded for reconsideration because the sentencing judge made an error of law in finding he lacked discretion to give the sentence he believed was most appropriate.

Further, the District Court failed to consider the sentencing factors mandated in 18 U.S.C. § 3553(a). Had the sentencing judge properly considered those factors, he would have independently assessed the seriousness of crack cocaine offenses and relied on that assessment in sentencing Mr. Starks.  In particular, 18 U.S.C. § 3553(a)(2)(A) commands a sentencing judge to consider the "seriousness of the offense."  This statutory phrase cannot be interpreted to mean that the court should consider the seriousness of the offense as reflected in the guidelines (ie, the 100-to-1 powder-to-crack ratio), or the seriousness of the offense in light of individualized factors relating to the crime or defendant, because those factors are independently identified for separate consideration in that same statute (at § 3553(a)(4) and (a)(1), respectively)....

Finally, affirmance of the district court's sentencing decision in this case would re-introduce limits on judicial discretion which will result in a recurrence of the violation of the Sixth Amendment that led to the Booker decision in the first place.

Download starks_v. US amicus brief.pdf

UPDATE: A press release about the Starks brief, as well as links to other materials in the case, is available here from the ACLU.