Tuesday, December 28, 2010

Crack Ratio and Sentencing Courts' Discretion

United States v. Johnson, No. 09--2173 (6th Cir. Dec. 28, 2010). Unpublished. Panel of Judges Martin, Moore, and Gwin (N.D. Ohio). Appeal after Spears remand.

Defendant was resentenced to 110 months (same as his original sentence). Rather than expressing agreement or disagreement with the crack guidelines, the sentencing court asserted that Congress had authorized the 100-to-1 ratio and deemed the courts an improper forum for reconsidering the ratio. Court of Appeals found that Kimbrough directly contradicts such an assertion.

When a district court indicates that policy disagreements are not a proper basis to vary from the guidelines, the resulting sentence is not presumptively reasonable. In such cases, the district court has committed procedural error by failing to appreciate the scope of the discretion it enjoys.

The district court here agreed with the 100-to-1 ratio. This agreement, however, was not with its substance, but because Congress had said it was the appropriate ratio by establishing the mandatory minimums, which, the district court said, had in effect engrafted a 100-to-1 ratio into the criminal statutes, and Congress had not changed the law despite many opportunities to do so.

The Court of Appeals found the district court’s analysis contrary to Kimbrough, which explained that the crack guidelines were not based on empirical data and national experience or guided by a professional staff with appropriate expertise, a trait that "normally characterizes the institutional competence of the Commission."

While district courts have wide discretion in fixing a crack-to-powder ratio, the courts are not free to cede their discretion by concluding that the courtroom is an improper forum for setting a crack-to-powder ratio.

The Court directs that "On remand from this decision, the district court may, as a matter of policy, agree or disagree with the Guidelines ratio that designates crack offenses as more serious than powder offenses. But it must not rely on the Guidelines for reasons that Kimbrough rejected, such as institutional competence, deference to Congress, or the risk that other judges will set different ratios."

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