The Government's merits brief in Kimbrough

This Government just filed its merits brief in US v. Kimbrough, the crack-cocaine below-guidelines reasonableness case to be heard by the Supreme Court at the start of the new Term, and it is available for download below.  Here is the first paragraph of the summary of the argument:

Congress has the power to prescribe the appropriate level of punishment for criminal offenses.  It may not only set minimum and maximum penalties for an offense, but also restrict the courts’ exercise of discretion within the statutory sentencing range.  Where Congress imposes such restrictions, and where those restrictions do not violate the Constitution, courts are bound to abide by them.  That is true even though courts otherwise have broad discretion in imposing sentence under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., as modified by this Court in United States v. Booker, 543 U.S. 220 (2005).  The Sentencing Guidelines are now advisory, and courts may vary based solely on policy considerations, including disagreements with the Guidelines.  But where Congress has made a specific policy determination concerning a particular offense (or offense or offender characteristic) that legally binds sentencing courts, and the Commission (as it must) incorporates that policy judgment into the Guidelines in order to maintain a rational and logical sentencing structure, that specific determination restricts the general freedom that sentencing courts have to apply the factors set forth in 18 U.S.C. 3553(a). Congress did not intend for the general standards in Section 3553(a) to trump specific policy determinations that Congress itself directs to sentencing courts.  Booker provides for review of sentences for “reasonableness,” and a sentencing court does not act reasonably when it rejects a specific congressional mandate.

Download kimbrough_govt_brief.pdf