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December 10, 2007

The start of the majority opinion in Kimbrough

Here is how the Kimbrough decision's majority opinion authored by Justice Ginsburg gets started:

We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration.  The judge may determine, however, that, in the particular case, a within- Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V).  In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.


December 10, 2007 at 10:38 AM | Permalink


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Kimbrough is not nearly the opinion that was needed. Because the Sentencing Commission, in enacting the 100:1, did not "exemplify the Commission's exerceise of is characteristic institutional role, it may be that "closer review [of a sentence] may be order when the sentencing judge varies from the Guidleines range based solely on the judge's view that the Guidelines range fails properly to refelct the 3553(a) considerations even in a mine-run case." It therefore reserves for yet another case, the full vindication of the Sixth Amendment in this advisory-Guidelines world.

Incidentally, though Justice Thomas is certainly correct that the Booker remedy cannot be coherently applied, he apparently is prepared to go back to mandatory Guidelines without any reference to the Sixth Amendment problems they create. There is nary a mention of the jury in his his proposal. Has Thomas abandoned the Apprendi revolution?

Posted by: | Dec 10, 2007 10:56:35 AM

so far, so good (academic-oriented sentencing (indiv/corp) 7 white collar (health care defense and compliance programs)

Posted by: benson weintraub | Dec 10, 2007 11:02:56 AM

I think Thomas is saying that not every guideline sentence gave rise to a 6th Amendment violation, so Booker should have been limited, and if it had been, the instant sentence would not have created any 6th Amendment issue.

Posted by: JustClerk | Dec 10, 2007 11:05:07 AM

I am surprised and kind of saddened that no one took Ginsburg to task for acknowledging at one turn that the Court doesn't infer Congressional intent from silence but at the next turn doing exactly that.

Posted by: Steve | Dec 10, 2007 11:15:39 AM

The Court said that the Guidelines already were advisory and the various Courts of Appeal basically refused to implement the decision. What part of advisory is so difficult to understand for these learned appellate court judges?

Posted by: william | Dec 10, 2007 12:38:18 PM

The anonymous author of the first comment above writes, "There is nary a mention of the jury in his proposal. Has Thomas abandoned the Apprendi revolution?"

How about this? "In my view, this violation was more suitably remedied by requiring any such [sentence-enhancing] facts to be submitted to the jury."

Posted by: Kent Scheidegger | Dec 10, 2007 12:55:49 PM


they have trouble with "dvis." "a" and "ory" they can comprehend.

Posted by: joel | Dec 10, 2007 1:27:57 PM


Yeah, but then he goes on to say he would have affirmed because the judge sentenced outside the Guidelines range, despite the constitutional infirmity that would create.

Posted by: | Dec 10, 2007 1:49:18 PM

He thus would have reversed because the judge should not have sentenced outside the guidelines range. But I think it is clear from the context that he would have had that range determined by applying only those facts that are admitted by the defendant or found by a jury. In other words he would reverse post-Booker sentences beause he disagrees with the Booker regime

Posted by: joel | Dec 10, 2007 2:43:56 PM

Kent & Joel,

Though I understand the intellectual point you are making, I don't think it applies in this case. If Kimbrough had been found to have had powder cocaine, his Guidelines range would have been 97-106 months. The range for crack was 228-270 months. Kimbrough was sentenced to 180 months. This is higher than 106 months, and can only be explained by the "fact" of crack. That is a judicial finding that put the sentence above the statutory maximum as defined by Blakely & constitutional Booker (106 mo.). So why did Thomas dissent unless he has abandoned the cause?

Posted by: | Dec 10, 2007 3:19:39 PM

Well... I think Thomas's closing was just a little sloppy -- he should have said that the the judge made two errors: using judicial fact finding to boost the sentence and then going below a mandatory guideline regime. In light of the mandatory minimum, these two errors may have canceled each other out (the unenhanced range was less than the mandatory minimums) so perhaps he should have voted to uphold the district court. Nonetheless, his explicit reference to the jury as the proper fact-finder leads me to think he remains a solid part of the Apprendi majority, particularly in the absence of any stronger evidence that he has abandoned it. Thomas is never one to avoid (dramatically, tearfully) acknowledging a mistake (see Apprendi concurrence, concurrence in Shepard, and in James, and *sigh* in this case). So if he were recanting Apprendi, I think he would let us know in clearer terms.

Posted by: joel | Dec 10, 2007 4:01:56 PM

Ah, joel, you are correct. I forgot about the mandatory minimum. Thanks.

Posted by: | Dec 10, 2007 4:47:37 PM

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