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June 23, 2008

Eighth Circuit tries to unpack Kimbrough in en banc ruling

Resolving a post-Booker case that's been keeping the Circuit busy for years, the Eighth Circuit today issues another opinion in US v. Spears, No. 05-4468 (8th Cir. June 23, 2008) (en banc) (available here). Here is the unofficial summary from the Eighth Circuit's terrific opinion page:

On remand from the Supreme Court for reconsideration in light of Kimbrough v. United States, 128 S.Ct. 558 (2007). For the court's earlier opinion in the case see United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc).  In light of Kimbrough, the court adopts the determination that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only; district court erred by categorically rejecting the ratio set out in the Guidelines, by substituting its own crack to cocaine ratio and by failing to conduct any additional analysis of the factors set out in 18 U.S.C. Sec. 3553(a); case remanded for further proceedings.  Judge Murphy, concurring.  Judge Colloton, dissenting, joined by Wollman, Bye, Melloy and Smith.

UPDATE:  A helpful commentor notes that the Third Circuit's post-Kimbrough insights in the Gunter case were handed down this month and can be accessed here.  The story of crack sentencing in federal court has so many chapters, it is hard to keep them all straight.

June 23, 2008 at 12:08 PM | Permalink


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The CA8 opinion discusses the Third Circuit's 2005 opinion in US v. Gunter extensively. Prof. Berman and others might be interested to know that that case has a sequel as well, in which the panel discusses Kimbrough and what district courts may and may not do in sentencing crack defendants.


Posted by: | Jun 23, 2008 12:34:12 PM

I think it's important to point out that this is a 6-5 opinion. And IMO, the dissent has the better view and the more thorough, persuasive analysis.

If a judge can impose a non-Guideline sentence due to his/her view that the policy reflected in the Guideline is inconsistent with 3553(a) (especially for a Guideline that does not reflect the USSC's expert empirical analysis), then a fortiori the judge must be able to impose a sentence that reflect his/her view of the correct policy, in consideration of all 3553(a) factors. And in order to promote uniformity (or, as the dissent points out, honesty and transparency), then the judge should be able to insert his policy beliefs and his view of 3553(a) in each case. Policy is policy...it does not change due to the case’s facts.

As the dissent appropriately asks, if the majority is correct then how else does a judge give a non-Guideline sentence in “the mine-run” case?

Posted by: DEJ | Jun 23, 2008 12:40:09 PM

DEJ, I think the concurring opinion has the best of it, if one reads that opinion somewhat narrowly.

District courts now have to impose a sentence sufficient, but no greater than necessary, to comply with the goals of sentencing, and in making that determination they must consider all of the 3553(a) factors, including the Guidelines.

In this case, the District Court doesn't seem to have done that. Instead, it substituted its own ratio into the Guidelines, crunched the numbers, and signed the order. It admitted that it didn't consider any of the other 3553(a) factors and therefore, it seems to me, failed to make the requisite determination that the sentence it imposed was sufficient, but not greater than necessary...

I think a district court could appropriately (by which I mean consistent with Kimbrough: (1) calculate the regular Guidelines sentence, then (2) substitute its own ratio into the Guidelines and calculate the resulting sentence, and then (3) informed by both data points and considering the other 3553(a) factors, decide what an appropriate sentence would be. If the result happens to be the same sentence that the second step produces, that is fine so long as the District Court considers the appropriate information when it exercises its discretion.

Also, if the court writes as well as Judge Gertner, the sentence would probably stand up on appeal.

As many other post-Kimbrough cases have, this case raises the interesting question of to what extent may a judge automate his sentencing process.

I wrote a lengthy anonymous comment about this in the context of another case (4th-to-last comment here http://sentencing.typepad.com/sentencing_law_and_policy/2008/04/fourth-circuit.html ) which I won't rehash here, but it seems to me that now that judges are allowed to sentence on the basis of "policy disagreement" with the Guidelines, opinions such as the district court's opinion here are really little more than candor on the part of the judges about how they generally intend to exercise their 3553(a) discretion, and no one should complain too much about that.

Posted by: krs | Jun 23, 2008 1:14:09 PM

Check out the Fifth Circuit's ruminations on prosecutorial discretion in stacking mandatory minimums: United States v. Looney, http://www.ca5.uscourts.gov/opinions/pub/06/06-10605-CR0.wpd.pdf

Posted by: Jay | Jun 23, 2008 1:56:32 PM

krs, I entirely agree with the 3-step process you describe above. Yet there are several problems with the concurrence, which would prohibit step 2 from occurring.

It sounds like we both agree district courts should be permitted to develop their own policy ratio (step 2 above). I don't believe the concurrence would countenance such an approach. Consider the following four excerpts from Murphy's opinions (and there are others that could be cited, as well):

1) "Only Congress has the power to alter the cocaine sentencing ratio in the statutes."

2) Explaining that the problem with the dissent is "the potential for each judge to develop his or her cocaine policy ratio with dramatically different results within and between districts."

3) Disagreeing with the dissent because under that approach "a sentencing judge may develop his or her own policy ratio for the range of cocaine cases"

4) Finally, the concurrence says a district court may not "develop their own policy ratio to be applied in every cocaine case."

Just as in every sentencing decision, the judge must consider the entirety of the offense and offender facts, and must consider all 3553(a) factors. But, in my opinion, he may do so through a lower new ratio that he/she feels is appropriate, and that ratio can be pre-set and can be the prism through which crack offenders are sentenced. As I read the concurrence, it says a district court may not analyze its sentencing decision by using a new pre-set ratio in every case. This is what I disagree with.

Rather, the concurrence believes “[t]he sentencing focus must be on the ‘particular defendant’ rather than on a whole category of cases.” The concurrence mis-characterizes the principles of Kimbrough.

The concurrence claims to get this “particular defendant” focus principle from Kimbrough at 575. But when the phrase “particular defendant” is looked at in context, it is revealed that it does not stand for the principle the concurrence cites it for. Here’s what SCOTUS said, in its entirety, regarding sentencing a “particular defendant”: “Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/power disparity yields a sentence ‘greater than necessary’ to achieve 3553(a)’s purposes, even in a mine-run case.”

Contrary to the concurrence’s assertion, the fact that a non-Guideline sentence can be imposed “even in a mine-run case” suggests that the sentencing focus can be “a whole category of cases.”

Posted by: DEJ | Jun 23, 2008 2:18:39 PM

DEJ, I think you're right about the concurring opinion. This puts me in the odd position of agreeing with the majority's result but mostly with the dissent's reasoning. Following the fourth paragraph of my comment above, I'd say that the district court was deficient at step 3, but otherwise fine. Thanks for the response.

Posted by: krs | Jun 23, 2008 2:32:48 PM

The dissent is clearly the better reasoned view and would lead to more consistent and transparent results. Judge Riley's majority opinion seems nothing more than a cheap shot at the district court who he claims "ignored" the 3553(a) factors. This is ridiculous as the dissent points out. Having gone to the mandatory minimum with the disparity issue -it was impossible to go lower using the 3553(a) factors and there is no indication the government objected or argued that the factors should increase the defendant's sentence. More importantly, as a person who practices criminal defense in the 8th Circuit it appears Judge Riley has never met a reduced sentece he likes or a government argument he rejected. Indeed, his true colors were flying yesterday when the U.S. Supreme Court reversed his opinion in Greenwald where he sua sponte added 15 years to a defendant's sentnece even when the prosecution failed to cross appeal. The Supreme Court slapped his fanny for this Draconian result oriented hanging high approach.

Posted by: J.B. Connor | Jun 24, 2008 7:40:50 AM

The Supreme Court slapped his fanny for this Draconian result oriented hanging high approach

If you'll read the opinion, I doubt you'll find that that's an accurate description. It turns on the cross-appeal rule, though those notorious hanging judges (Alito, Breyer and Stevens) were in the 8th Circuit's corner.

Posted by: | Jun 24, 2008 1:36:28 PM

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Posted by: חלקי חילוף לרכב בשרון | Jan 3, 2011 7:56:42 AM

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