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September 12, 2006

Good Gunter ... now what?

As noted here, on Monday the Third Circuit in Gunter held that "district courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process."  Impressively, the nuanced Gunter decision reaches this result without directly contradicting rulings in other circuits that have rejected certain below-guideline variances based on the crack guidelines. 

The Gunter panel seems to endorse an approach to crack sentencing that I suggested in this post after the First Circuit's Pho ruling: Gunter suggests that sentencing courts should not construct their own "alternative guideline" (such as a 20:1 crack/powder ratio), but it clearly holds that district judges may refuse to follow the crack guidelines as long as they provide reasons for rejecting the crack penalty levels as too harsh without creating and applying an "alternative guideline" rules.  Significantly, though the nuanced holding in Gunter claims it is consistent with other circuit rulings, DOJ — which had a long circuit winning streak in crack cases — cannot be pleased with the crack that the Gunter decision creates in the crack guidelines.

So the big question becomes now what for both DOJ and the courts.  DOJ will likely seek en banc review of Gunter, but I am not sure the full Third Circuit will want to take this up.  And I am not sure DOJ will be eager to seek cert in a case where the district court treated the crack guidelines as essentially mandatory.  Meanwhile, a few circuits still have not weighed in on crack sentencing, and I am hopeful that the Gunter decision — which, unlike other circuit rulings, spotlights the full text of 18 U.S.C. § 3553(a) and the Sentencing Commission's repeated rejection of the 100:1 ratio — will be a beacon of light for other courts grappling with these issues.

September 12, 2006 at 03:59 AM | Permalink


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