First Circuit rejects reduced crack/powder ratio

In an important ruling in the on-going post-Booker debate over the federal sentencing disparity between crack and powder cocaine (basics here and here and here), the First Circuit today in US v. Pho, No. 05-2455 (1st Cir. Jan. 5, 2005) (available here), rejected a district court's decision to apply a 20:1 crack/powder ratio rather than the 100:1 ratio that is specified in the sentencing guidelines.  Here is the opening paragraph of the opinion authored by Judge Selya:

We are called upon to answer a vexing question of first impression at the appellate level: May a federal district court, consistent with the teachings of United States v. Booker, 125 S. Ct. 738 (2005), impose a sentence outside the advisory guideline sentencing range based solely on its categorical rejection of the guidelines' disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand?  The court below believed that it could and sentenced the defendants in accordance with that belief.  After careful consideration, we conclude that the district court's approach was incorrect as a matter of law. Consequently, we vacate the defendants' sentences and remand for resentencing.

In part because I believe this opinion is wrong, and in part because I have to look up some of the words Judge Selya uses in the opinion, lots and lots commentary will follow soon.

UPDATE: Here are some of the key passages of Pho, which will surely warm the heart of fans of the sentencing guidelines and dishearten those eager to see a more nuanced understanding of guideline application after Booker:

The clear import of [the SRA's] statutory framework is to preserve Congress's authority over sentencing policy and to guarantee that the exercise of judicial discretion over sentencing decisions be based on case-specific circumstances, not on general, across-the-board policy considerations.

Nothing in Booker altered this distribution of authority over sentencing policy.  Booker established that a district court may exercise discretion in fashioning sentences — but that discretion was meant to operate only within the ambit of the individualized factors spelled out in section 3553(a). 

The decision to employ a 100:1 crack-to-powder ratio rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio is a policy judgment, pure and simple. After all, Congress incorporated the 100:1 ratio in the statutory scheme, rejected the Sentencing Commission's 1995 proposal to rid the guidelines of it, and failed to adopt any of the Commission's subsequent recommendations for easing the differential between crack and powdered cocaine. It follows inexorably that the district court's categorical rejection of the 100:1 ratio impermissibly usurps Congress's judgment about the proper sentencing policy for cocaine offenses.