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September 3, 2007

Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?

This weekend I read closely the Government's brief in Kimbrough (available here).  The brief is effective, but it largely dodges discussion of the import of the Sentencing Commission's proposed crack guideline amendment (archive here), and it also makes a number of significant concessions.  These concessions late in the Kimbrough brief especially caught my attention:

[A] court could disagree with the Guidelines’ treatment of a crack offender’s role in the offense, or (as was seemingly the case here) with the Guidelines’ treatment of the offender’s prior military service....

While courts could not rely on [US Sentencing Commission] reports as a basis for categorically disagreeing with the 100:1 ratio, courts could properly consider those reports in determining whether a particular defendant’s commission of a crack-cocaine offense implicates the policy reasons underlying Congress’s harsher treatment of crack offenses.  See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *6 (3d Cir. July 20, 2007); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); Williams, 456 F.3d at 1369.  For example, one of the justifications for the 100:1 ratio was that crack cocaine is more closely correlated with the commission of other serious crimes (based on the greater propensity of individuals trafficking in crack to carry weapons).  See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 184-185 (1995).  Accordingly, it would not be inconsistent with congressional policy for a court to conclude that, based on the individualized circumstance that a crack offender did not carry a weapon or otherwise threaten violence in connection with the offense, a downward variance would be appropriate.

In other words, in Kimbrough, the Government is conceding that almost any reasoned factual or policy basis for not following the crack guidelines in an individual case could justify a below-guideline crack sentence.  (And, though not saying so explicitly, the Government seems to hint that Derrick Kimbrough's below-guideline sentence might well have been justified on such grounds.)  Throw in the fact that the USSC's proposed crack amendments might be made retroactive (and thus applicable to Derrick Kimbrough) before the Supreme Court has a chance to render an opinion, and I am now thinking the Court's best move might be to just kick Kimbrough — and all other crack cases in which cert. petitions are pending — back to the circuit courts for reconsideration.

Some related posts:

September 3, 2007 at 01:43 PM | Permalink


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From the perspective of defense lawyer, doug, I think that kicking back Kimbrough is a terrible idea. The Court needs to give a clear statement as to what types of materials can be considered and to explain why (a)(6) need not mean a near-complete, although not nearly just, uniformity. Otherwise, the conservative Circuit Courts will continue to ignore Booker and Rita, continue to overturn well-reasoned downward variances, and continue to keep the district courts chained to the guidelines even in sympathetic cases.

Posted by: | Sep 3, 2007 8:42:52 PM

Don't you get it YET, professor? Kimbrough is about much more than the crack guidelines. Your idea is tellingly myopic.

Posted by: | Sep 3, 2007 9:09:16 PM

But, commentors, the Court has Gall to discuss all these other matters. Though think the Court could and should try to bring more clarity than confusion though a ruling on the merit in Kimbrough, the Justices' track record on federal sentencing cases since Blakely has not be inspired.

Posted by: Doug B. | Sep 4, 2007 7:14:48 AM

Professor B, I remember when you suggested that Claiborne might do better to go back to the 8th Circuit just before his case was argued. . . a Circuit which was continuing to cite their shocking opinion in his case to undue virtually every below guidelines sentence until the Supreme Court took the remarkable step of ordering that opinion stricken upon his death.

If the Fourth Circuit is anything like the 8th Circuit -- which is also using Gall to overrule virtually every probation sentence the government doesn't like despite the fact the Supreme Court granted cert -- remanding Kimbrough would accomplish nothing to change the issues that got him there. Prosecutor-centric Circuits like the 8th (the 4th and the 5th) grant no deference to mere suggestions from the Supreme Court, conservative though it is. Justice Stevens, may have granted the circuits too much credit in his Rita concurrence in suggesting that they'll now understand the Guidelines really are advisory. Not in the 8th they aren't, and if Rita said otherwise, well the Eight Circuit will simply ignore Rita like they ignored Booker. . . They don't find that hard to do at all. . .

Posted by: OMG | Sep 4, 2007 10:04:32 AM

I wonder if the same arguments (or some of them) may occur to some Justices and convince them to DIG? I wonder if anyone at the Court was aware of the new Guideline amendments when this was granted.

Posted by: | Sep 4, 2007 1:52:43 PM

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