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October 2, 2009

Seventh Circuit judges debating reach of Kimbrough to career offenders

The Seventh Circuit today has an interesting panel opinion in US v. Welton, No. 08-3799 (7th Cir. Oct. 2, 2009) (available here), which in turn triggers an interesting dissent from judges not actually on the panel deciding the case.  First, here is the heart of the ruling in Welton:

Welton contends that Kimbrough’s holding should be extended to include defendants sentenced as career offenders. But applying the reasoning above, Welton’s argument must fail. Unlike the crack/powder disparity, the career offender Guideline range is the product of a Congressional mandate. As Kimbrough noted, Congress “specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum.” Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from the career offender Guideline range based on a policy disagreement necessitates that a sentencing court disregard those statutory maximums.

Because this ruling required the Seventh Circuit panel to overrule a prior decision, this opinion was circulated to all member of the Circuit.  That, in turn prompted a dissent from three judges not on this panel, which starts this way: 

The Supreme Court has held unequivocally that all guidelines are advisory and that courts may issue below-guideline sentences based on policy disagreements with the crack/powder disparity.  Nonetheless, the panel believes there are some exceptions to these rules. Because the panel opinion imposes impermissible limits on a judge’s discretion in applying the Sentencing Guidelines, I believe it is out of step with the Supreme Court’s decisions in Booker and Kimbrough.

October 2, 2009 at 10:50 AM | Permalink


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This is an issue that is ripe for cert attention: What is the scope of Kimbrough, and does its rationale apply to other Guidelines (specifically, career offender, child pornograhy, fast track, ect.)?

Lower courts, especially district courts, need this clarification sooner rather than later!

Posted by: DEJ | Oct 2, 2009 11:58:57 AM

Ai, this is an interesting issue. The real question is whether Kimbrough insistence that judges follow Congressional legislation refer to the *law* or the Congressional *policy* embodied in the law, or both.

I think it's a close call. My take is that the dissent has the better of the two arguments. It doesn't make a whole lot of sense to say that courts can disagree with a policy of the Commission and not with Congress when the Commission is an instrument of Congress. Judges can and do have policy disagreements with Congress. So long as judges meet the letter of the law, that is sentence within the statutory range, that's all they need to do to obey the law.

Posted by: Daniel | Oct 2, 2009 2:38:48 PM

The dissent certainly has the better argument. While Congress directed the USSC to set the GL range near the stat. max., such a command has not been given to the courts.

In essense, when Congress does something through the Guidelines, it is advisory. If Congress does something through statute directed at courts, only then is is mandatory. Because the Career Offender Guideline is found in the Guidelines, a court can disagree with it as not adequately reflecting 3553(a).

Posted by: DEJ | Oct 2, 2009 4:46:31 PM

DEJ --

Your analysis might have unintended consequences: It explains the reason future Congresses may adopt more and more mandatory minimum sentences.

Justice Stevens' dissent from the remedial portion of Booker shows how completely Congress had come to distrust the federal judiciary in sentencing. As Stevens explains, that is why Congress made the Guidelines mandatory.

The further away the system gets from mandatory guidelines (through, for example, an expansive reading of Kimbrough), the more likely it is that Congress's distrust will re-emerge. It won't happen in this Congress, but in 13 months this Congress is going to experience a Thermidor. When that happens, mandatory minimums will be back on the table.

That is not my preference. Mandatory guidelines with room for well-reasoned departures (of which there were plenty) seemed to me to strike a better balance between the competing needs for improved uniformity system-wide and individualized consideration in particular, unusual cases. But since, post-Booker, we don't have that anymore, the original irritant has returned.

The triumph of idiosyncratic sentencing is now all but complete; Nancy Gertner is in her heyday. But, like any other heyday, it won't last.

Posted by: Bill Otis | Oct 3, 2009 8:53:15 AM


It should be a truism that, post-Booker, the only way for a congressional directive to be mandatory on sentencing courts is for it to be a directive to the sentencing court, not to the USSC. I agree that one consequence of this might be more directives to sentencing courts in Title 18 (as opposed to the USSC in Title 28), potentially in the form of mandatory minimums. Other options, however, would be available.

Nevertheless, while this would be an unintended consequence, I do believe my legal analysis on whether the career offender GL can be disagreed with under current law is the correct one. The 7th Cir. got it wrong here, and the "possible" "unintended consequence" of such a correct conclusion is no reason to not follow the law.

On another note, something in your post highlights a continuing problem I have with the argument that presumptive/mandatory GLs with room for well-reasoned discretion is preferable. I would be more willing to agree if your view of what constitutes meaningful discretion weren't so constrained. You state that there "were plenty" of departure options available. I'm assuming you mean pre-Booker. If that's what you view as meaningful, reasoned discretion then I say no thank you. For starters, if Chapter 5, Part H, were deleted, I might be more willing to agree. But in no way did the pre-Booker system allow for "plenty" of departures, especially due to the departure jurisprudence of most Circuits.

When advocates of such a presumptive/mandatory GL system make their argument, they always, without fail, say there should still be room for meaningful discretion. To your credit, you went on to imply that pre-Booker was such a system. Therein lies my unwillingness to agree. Our view of "meaningful discretion" is as far apart as night and day.

Posted by: DEJ | Oct 3, 2009 12:46:31 PM

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