Must Read---Standard of Review and Crack

Ok, not a lot of time to dissect this opinion here, but in United States v. Simmons, 587 F.3d 348 (6th Cir. 2009), released November 23, 2009, the panel of Judges Boggs, Clay, and Bertelsman (E.D. Ky.) considered standard-of-review issues and the substantive reasonableness of crack sentences based on the 100:1 ratio.

The case revisits Vonner in a way and considers the Bostic question. Sentencing took place in 2007 and defendant got a within-guidelines sentence for a crack offense. Defense counsel argued against the disparate treatment of crack and powder prior to and at sentencing. The dist ct did not explicitly address the argument in imposing sentence. When asked for objections at the close of sentencing, defense counsel said she objected on procedural and substantive grounds.

On appeal, counsel argued that the sentence was procedurally flawed b/c the dist ct did not address the disparity argument.

Holding: Vonner requires plain-error review of procedural claims when a party affirms they object after the ct asks the Bostic question, but that objection is so general the dist ct does not have the opportunity to correct the alleged error and the appellate ct does not have a more detailed record.

No plain error in this case.

In terms of substance, the panel affirms the sentence, but remands for a look under Section 3582(c)(2) since this sentencing was in March 2007. Troubling aspect is the panel looks at old sources like 1995 Sentencing Commission Special Report to Congress and 2000 and 2006 cases to find that disparity is OK and that crack is a more addictive, dangerous drug.

Judge Clay dissented. It's a long dissent and worth a close look. He finds that Bostic put the onus on the dist ct to clarify the record regarding objections. He also finds that Vonner encourages a common-sense application of the plain-error rule.

He finds it is procedural error not to address a defendant's central argument for a below-guidelines sentence. Burden of developing adequate record should not be on defense. He finds that review should be in context. He recognizes the strategic issues involved in pressing a given argument in the dist ct once it has been raised.

He would find error even under plain-error review. No indication the dist ct considered the disparity argument.

Check this case out. It impacts our obligations regarding objections at the dist ct level and it impacts the crack--powder disparity arguments in this Circuit.