Fourth Circuit on crack (guidelines, that is)

Capping off a big (and discouraging) Booker week for the Fourth Circuit, a panel today in US v. Eura, No. 05-4437 (4th Cir. Feb 24, 2005) (available here) has reversed a district court's decision to vary from the 100:1 crack/powder ratio.  Here is the panel's introductory account of its holding:

The principal question presented in this appeal is whether a district court in the post-Booker world can vary from the advisory sentencing range under the Guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress.  For the reasons stated below, we conclude a court cannot vary from the sentencing range in such a manner.

Commentary (likely to be quite critical) will follow once I have a chance to read the opinion closely.

UPDATE:  I have only made it to page 10 of Eura and I am already outraged.  There is a passage on page 10 which rewrites the plain terms of a clear statute.  On page 10, the majority in Eura, in the course of describing post-Booker sentencing, states: "If a sentence within the sentencing range serves the factors set forth in § 3553(a), the court should impose a sentence within that range that best serves those factors."   But this is clearly and absolutely not what Congress has told sentencing courts to do in section 3553(a) of the Sentencing Reform Act.  The clear plain textual command of 3553(a) set forth by Congress states very simply: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."   Tellingly, the Eura majority never discusses this provision of 3553(a).

As I read Eura, it strikes me as an example of judicial activism at its worst.  I wonder if those who decry judicial activism in other contexts will step up to complain about this example.  I wonder if any purported textualists on the Fourth Circuit or on the Supreme Court might be inclined to do something about the Eura panel's failure to follow Justice Scalia's simple aphorism that the "text is the law, and it is the text that must be observed."

MORE:  The sad and depressing reality of Eura continues on page 12 when the majority suggests the district court's decision to sentence the defendant to 10 years (rather than the 11.5 years the guidelines advised) some how serves to "subvert Congress' expressed will."  By my lights, the Eura decision subverts Congress' explicit text by rewriting the requirements of 3553(a).

In addition, by ordering the district court to resentence the defendant within the guidelines, the Eura court also subverts the constitutional holding in Booker.  How are the guidelines "effectively advisory" if the district judge lacks discretion to deviate from them in this case?  Notably, the guideline range in this case was established through judicial fact-finding of an obstruction of justice enhancement, and so the merits portion of the Booker opinion (and thus the Constitution itself) has been transgressed by the result in Eura.