Crackin' good arguments, Gromit!

Because I always love a good pop-culture reference, I will use my favorite animated friends to set up another entry about the crack/powder reasonableness debates in the federal circuit courts.  At this link you can check out Wallace and Gromit in their terrific Cracking Contraptions shorts, and in the post below you can read about the latest oral arguments in the circuit courts about post-Booker crack sentencing.

Regular readers may recall this recent post with a brief report from Professor Mark Osler on the argument in the Second Circuit in US v. Castillo, a case which concerns whether it is reasonable for a district judge not to follow the guidelines' 100-1 crack-powder ratio.  Mark has also been given time at oral argument in two cases raising similar issues in the Eighth and Ninth Circuits this week.  Today was the Ninth Circuit argument in Starks (previously discussed here), and below are portions of a report Mark sent me right after the oral argument:

The first significant case out of the Ninth Circuit to involve the ability of a sentencing judge to vary from the guidelines based on a belief that the crack guidelines are too harsh was argued this morning before an unusually large crowd of 50-75 people.  After the big turn-out for the Castillo argument, I'm beginning to wonder if there are more sentencing nerds out there than I expected.

Unfortunately for those of us who hope for a broader discussion of the 100-to-1 powder/crack ratio in federal sentencing, the Starks panel (Chief C.J. Schroeder, D.J. Graber, and Senior Dist. J. Holland) spent most of the questioning period addressing a waiver issue.  In this case, the defendant had waived appeal in his plea agreement, but at sentencing Judge Shubb (E.D. Cal.) told the defendant that he had the right to appeal, and even encouraged the defendant to appeal ("I urge the defendant to appeal from this sentence if his attorney believes that an appeal would be fruitful…"). The judges of the circuit panel seemed doubtful that this affected the waiver in the plea agreement.

I was allowed time to argue the Booker issue as well.  The posture of Starks is fairly unique, as it involves a sentencing judge who held he did not have the ability to sentence below the guideline range if there were not particular facts about the defendant justifying that variance. I tried to impress upon the court that this misread both Booker and the relevant statute (18 U.S.C. 3553(a)), in that it forestalled many of the 13-plus factors in the statute from even being considered, as that statute and Booker require.

On to Omaha!

Some recent related posts:

• Encouraging a critical race examination of post-Booker developments
• Reflecting 20 years after the crack panic
• Noticing different legislative reactions to meth and crack
• Report on Second Circuit crack reasonableness argument
• Crack sentencing news and notes
• Amicus brief in crack sentencing appeal
• Another crack at an amicus brief on crack sentencing
• Yet another amicus crack at crack sentencing
• More friendly advice on crack sentencing for Third Circuit
• New ACS issue brief on crack sentencing disparity
• Insightful report and analysis of Booker on crack
• Crack(ed) dicta from Judge Easterbrook for the Seventh Circuit