Third Circuit adds nuance to crack sentencing after Booker

In a thoughtful and potentially very important decision, the Third Circuit today in US v. Gunter, No. 05-2952 (3d Cir. Sept. 11, 2006) (available here), adds nuance to the debate over post-Booker crack sentencing.  Running 29 pages, the Gunter decision has too many highlights to summarize; here are perhaps the most important conclusions:

[O]nce between the minimum and maximum statutory ranges of 21 U.S.C. § 841(b), there is nothing special about the crack cocaine Sentencing Guidelines that makes them different, or less advisory, than any other Guidelines provision....

Post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines — but not demanded by 21 U.S.C. § 841(b) — as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant § 3553(a) factors)....

Of course, the District Court is under no obligation to impose a sentence below the applicable Guidelines range solely on the basis of the crack/powder cocaine differential. Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten.  The limited holding here is 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.