Another crackin' argument report

As detailed in this recent animated post, Professor Mark Osler had another chance today to argue, in an amicus capacity, that it is reasonable for a district judge not to follow the guidelines' 100-1 crack-powder ratio.  Today the argument was in an Eighth Circuit case, Spears (previously discussed here), and below are portions of a report Mark's research assistant Dustin Benham sent me after the oral argument:

The case, Spears v. United States involved a judge who varied from the 100:1 powder/crack cocaine ratio and instead adopted the 20:1 rationale from United States v. Perry.  The panel, composed of Judges Bye, Lay, and Riley, was engaged and informed.  Judge Riley was particularly interested in whether individualized consideration occurred in the case.  Judge Bye paid special attention to the source of the 20:1 ratio in Perry - the 2002 Sentencing Commission report.  He noted that although Congress never acted on the report, it has always paid special deference to the Sentencing Commission's recommendations.  He pressed the government to explain how the report itself or its recommendations were unreasonable. The government was unable to directly answer the question.

Prof. Osler argued that there is no support in law for the government's position and that judges have discretion to vary after Booker.  Judge Riley, in the final question, asked how the 100:1 ratio is part of the law. Prof. Osler had a two part reply.  First, the 100:1 ratio is reflected in the statutory mandatory minimums which were followed in this case. Second, it is part of the guidelines which, after Booker, are advisory and are to be considered.  The sentencing judge in Spears, by adopting the rationale of Perry, considered and rejected the ratio, thus satisfying section 3553(a) as rewritten by the Supreme Court in Booker.

Joyfully, the Eighth Circuit posts audio clips of argument on-line at this link.  Everyone should be able to hear the Spears argument for themselves before long.