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February 7, 2008

Eighth Circuit provides post-Kimbrough spin on crack sentences

The Eighth Circuit today in US v. Roberson, No. 06-3458 (8th Cir. Feb. 7, 2008) (available here) provides its spin on crack sentencing after Kimbrough. Here are some key excerpts (with cited omitted):

The district court ignored Roberson’s and Sturgis’s arguments for lighter sentences based on the 100:1 disparity between crack and powder cocaine under the guidelines.  Previously, we have expressly refused to authorize such a consideration. Kimbrough held that the sentencing court did not abuse its discretion by considering the disparity between crack and powder cocaine sentences. More specifically, a district court acts within its discretion if it considers the crack/powder disparity in finding that a within-guidelines sentence is “‘greater than necessary’ to serve the objectives of sentencing.” Id. at 564 (quoting 18 U.S.C. § 3553(a) (2007)).

We do not believe, though, that Kimbrough means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity. True, the Supreme Court took a dim view of the extent of the disparity and was supportive of the Commission’s efforts to reduce it, see Kimbrough, 128 S.Ct. at 564, 567-68, but it did not appear to mandate that district courts consider the disparity in all sentences for crimes involving crack cocaine. Accordingly, we decline to go beyond the facial holding in Kimbrough by requiring that district courts consider the crack/powder disparity.

February 7, 2008 at 05:37 PM | Permalink


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I see a disturbing but not surprising trend: the appellate courts rubberstamp any sentence that possesses any veneer of procedural soundness (e.g., the district court perfunctorily stated that it considered the guidelines advisory) but rarely actually review sentences for substantive reasonableness. Justice Scalia warned of this probable outcome at the start of this sentencing revolution, saying: "At the other extreme, a court of appeals might handle the new workload by approving virtually any sentence within the statutory range that the sentencing court imposes, so long as the district judge goes through the appropriate formalities, such as expressing his consideration of and disagreement with the Guidelines sentence."

United States v. Booker, 543 U.S. 220, 312 (2005) (Scalia, J., dissenting)

Posted by: defense attorney | Feb 7, 2008 6:16:17 PM

Right. Gall emphasized discretion. If a district judge isn't totally irrational or asleep at the switch, it's hard to imagine many scenarios where a sentence would be substantively unreasonable. (e.g. this: http://volokh.com/posts/1166557915.shtml).

Prof. Berman has argued that district judges should show their work more. This is probably true, but if the district courts are going to be nudged in that direction, the courts of appeals are unlikely to do the nudging. Appellate courts rarely reverse district courts for not giving them enough reasoning to facilitate review, and the bar for that sort of thing is pretty low, usually.

Substantive reasonableness review looks a bit to me like rational basis review in constitutional law cases. It exists, but it doesn't have a lot of teeth. Defendants who are fortunate enough to get conscientious and lenient judges will benefit; defendants who are unfortunate enough to get conscientious and harsh judges will lose out. Defendants who get less conscientious judges (or more backlogged--some district courts are drowning in filings) should hope for lawyers who negotiate pleas well and know the Guidelines cold.

Posted by: | Feb 7, 2008 6:35:59 PM

I trust that who decide case without hearing the other side, though he decides justly, cannot be considered just.

Posted by: Lawsuit loan | May 3, 2008 3:42:56 AM

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