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June 11, 2007

A decision day for consensus at SCOTUS, with big cert news

In this post at SCOTUSblog, Lyle Denniston has the early news on all the Supreme Court action this morning.  Apparently the Court has cleared out all of its "easy" cases today by issuing five unanimous decisions, with the habeas decision in Fry v. Pliler being the only action in the criminal law arena.  So, more waiting for Rita and Pinetti as wel come down the Term's stretch run.

The cert grants, however, will get federal sentencing fans very excited.  Here's the early report from Lyle:

The Supreme Court agreed on Monday to take up at its next Term the long-standing dispute over the fairness of punishing crack cocaine crimes far more severely -- 100 to 1 -- than those involving cocaine powder under federal Sentencing Guidelines. It agreed to hear that issue in Kimbrough v. U.S. (06-6330).  It also agreed to take a case -- also to be decided next Term -- on the same Sentencing Guidelines issue that the Court had been considering in Claiborne v. U.S. before Mario Claiborne died. The new case is Gall v. U.S. (06-7949).

I will discuss Kimbrough and Gall at length in coming posts after I find out a bit more about the questions presented and the factual particulars.  I'm already giddy for next term!

June 11, 2007 at 10:38 AM | Permalink


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» Supreme Court to Hear Crack Sentencing Case from Drug Law Blog
Stepping into the gap where the Sentencing Commission has failed to take meaningful action, the Supreme Court has agreed to hear a case challenging the 100-to-1 crack-to-powder sentencing ratio under the federal sentencing guidelines. The case is Kimbr... [Read More]

Tracked on Jun 11, 2007 11:10:33 AM


Judging from the opinion below in Kimbrough, the case doesn't seem to be about "the fairness of punishing crack cocaine crimes far more severely," as SCOTUSblog terms it. It's about whether district courts can impose a below-Guidelines sentence in part because of policy disagreements with the powder:crack ratio. In other words, it's not whether the Supreme Court agrees with the ratio; it's whether district courts that disagree with the ratio can factor this into sentencing decisions.

This is an important difference that most media outlets will probably completely overlook -- even though, ironically, the question the case actually presents, versus what it appears to present, is much more important. The actual question (so it seems) implicates the broader issue of the extent to which district courts can take into account their own policy differences with the Sentencing Guidelines in sentencing defendants. That's pretty huge.

Posted by: Stephan | Jun 11, 2007 10:53:22 AM

On _Kimbrough_ - it is an unpublished case (as was _Rita_) that consists of two whole paragraphs:

The Government appeals the district court's imposition of a sentence outside of the United States Sentencing Guidelines range based, in part, on the district court's disagreement with the disparity between sentences for crack and powder cocaine violations. We have jurisdiction to review the sentence pursuant to 18 U.S.C.A. § 3742 (West 2000). We review post- Booker sentences for reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.2005).

Derrick Kimbrough pleaded guilty to distributing fifty or more grams of crack cocaine, distributing cocaine, conspiring to distribute fifty grams or more of crack cocaine, and possessing a firearm in connection with a drug trafficking crime. The sentencing guideline range was 168 to 210 months imprisonment for the drug counts *799 and 60 consecutive months for the firearm count. Based, in part, on the district court's disagreement with the sentencing disparity for crack and powder cocaine violations, the district court sentenced Kimbrough to 120 months on each of the three drug violations, to be served concurrently, and sixty months on the firearms charge, to be served consecutively. According to our recent decision in United States v. Eura, 440 F.3d 625 (4th Cir.2006), a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses. Because the district court concluded that the crack to powder cocaine disparity warranted a sentence below the applicable sentencing guideline range, we are constrained to vacate Kimbrough's sentence and to remand the case for resentencing. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.

The cite is US v. Kimbrough, 174 Fed.Appx. 798 (4th Cir. 2006).

Posted by: JDB | Jun 11, 2007 10:55:20 AM

Gall? As in Eugene Gall? He had been on Kentucky's death row longer than any other inmate. I wonder if it's the same person.

Posted by: BabbuLu | Jun 11, 2007 11:00:21 AM

Nope, Brian Gall. Doesn't seem like that's the same person.

Posted by: Steve | Jun 11, 2007 11:08:50 AM

The Gall case is Claiborne redux. I wouldn't be surprised if we see some expedited briefing schedule so that the Court can decide the case this Term.

I called the Kimbrough grant (well, sort of -- I didn't mention Kimbrough by name) last month. That means I'm 1 for 1. This 100% success rate bodes well for my prediction of a grant in Faulks v. United States -- which curiously was not on the order list today.

Posted by: Aaron | Jun 11, 2007 11:33:55 AM

I guess one big question now is whether the Supremes forge ahead and decide Rita before the end of the term, or whether they hold back on Rita and decide it along with Gall in the fall.

I dont understand why the SCt did not go for the emminently reasonable suggestion to substitute another case for Claiborne that could be decided this term after expedited briefing without oral argument. That takes a lot of Gall!

Posted by: RAC | Jun 11, 2007 11:39:27 AM

What's up with Faulks and Beal? IIRC, they were listed for the June 7 conference, but I don't see them on the orders list

Posted by: | Jun 11, 2007 11:40:31 AM

Here is the cite to the 8th Cir. opinion: United States v. Gall, 446 F.3d 884 (8th Cir. 2006).

Here is the opening paragraph:

Brian Michael Gall pleaded guilty to conspiracy to distribute a mixture and substance containing methylenedioxymethamphetamine (“MDMA”), a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. The district court imposed a sentence of 36 months' probation and a $100 special assessment. The government appeals the sentence, arguing that it is unreasonable. We conclude that Gall's sentence is unreasonable. Accordingly, we remand the case for resentencing.

Because Claiborne involved sentencing under the crack Guideline and Gall does not, it makes sense that the court also decided to grant cert in Kimbrough.

Posted by: DEJ | Jun 11, 2007 11:42:37 AM

Beal is obviously being held for Gall. My personal belief is that the Court did not want another round of briefing from the same lawyer who did Claiborne. Gall gives the Court a chance to hear briefing from a fresh view.

I think there is a good chance that Rita won't be issued until a decision in Gall is issued, but that's my own view. Even if Rita "lost" (as Marc Shepard predicts on scotus blog), I don't think that means the Court isn't going to remand the case with further instructions.

With respect to Faulks, let the conspiracy theories abound!

Posted by: Aaron | Jun 11, 2007 12:07:25 PM

The Kimbrough case is obviously a bit narrower than the press may be reporting it, but couldn't it also be mostly mooted by the Court's decision in Rita?

Posted by: Steve | Jun 11, 2007 12:14:37 PM

Fry is unanimous on the main legal issue that the Brecht standard applies on habeas regardless of whether the state court did a harmless error analysis. However, there are dissents in part on the curious question of how Chambers error can possibly be harmless under Brecht, if both of those rules are applied correctly. Justice Breyer has the better of the two, IMHO.

More on this at Crime and Consequences

Posted by: Kent Scheidegger | Jun 11, 2007 12:20:28 PM

Re: Kimbrough -- Rita could narrow the scope of the arguments that petitioner will be able to make, but there's a good chance that Rita will completely kill the government's position.

I wonder whether Kimbrough and Claiborne will be treated as companion cases. Clearly they'll argue the same day, right?

Posted by: Aaron | Jun 11, 2007 12:21:57 PM

Brian Gall is one of the more sympathetic defendants among those whose downward variances the Eighth Circuit has undone. The gist is that he left drug-dealing behind and turned his life around, only to be charged and convicted some time later for his past crimes. Also, Gall's case does not present the career-offender twist that I commented on regarding Beal's case.

Posted by: Booker fan | Jun 11, 2007 12:46:46 PM

I can't for the life of me see why it's unreasonable to give a probation sentence to someone who voluntarily stopped committing (utterly non-violent) drug crimes four or five years ago, got an education, got a job, has a negligible criminal history, and has lived a law abiding life since. I say the government's got an uphill battle (anyplace but the Eighth Circuit, of course).

Posted by: David in NY | Jun 11, 2007 1:15:13 PM

Does anyone know if the cert petition in Kimbrough is available anywhere online?

Posted by: JD | Jun 11, 2007 2:31:58 PM

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