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Kimbrough v US: The Disparity Between The Guidelines Treatment of Crack and Powder Cocaine In Determining a Sentence

Kimbrough v. United States, 552 U.S. 85 (2007).  Opinion by Justice Ginsburg.

Issue: Whether or not the sentencing court may impose a sentence outside the guidelines range given the disparity in the statute between  crack cocaine and powder cocaine where the departure from the guidelines range is due to the court’s consideration of  18 U.S.C. § 3553(a).

The real issue here was the policy that crack cocaine and powder cocaine were treated so differently under the sentencing laws.  The same amount of crack cocaine as powder cocaine carried a far greater punishment.

Holding: In a 7-2 opinion, the Court held that a sentencing judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine when determining a sentencing range.  The Supreme Court put the authority back in the sentencing court’s hands to eliminate the vast disparity between crack and powder cocaine in the sentencing phase.

Facts: Derrick Kimbrough was indicted in September 2004 in federal court in Virginia on four drug-related counts: conspiracy to distribute both crack and powder cocaine; possession with intent to distribute more than 50 grams of crack cocaine; possession with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drug trafficking offense.

Kimbrough pleaded guilty to all four counts. Under the statutes that define these respective crimes, Kimbrough faced a sentence of between 15 years and life in prison. Based on the facts Kimbrough admitted the district court computed the applicable range under the federal sentencing guidelines at 228 to 270 months in prison. Kimbrough’s Guidelines range was so high because his offense involved both crack and powder cocaine.

The mandatory minimum sentence, in turn, was 180 months in prison, and the district judge imposed that sentence.

The Fourth Circuit Court of Appeals vacated the sentence and remanded for further proceedings. Relying on a prior opinion, the appellate court stated that any sentence that fell outside the Guidelines range was per se unreasonable if that sentence was based on a policy disagreement with the fact that crack cocaine offenses are punished more harshly than powder cocaine offenses.

Legal Analysis: The Court summarized the history of the crack/powder disparity, noting the circumstances surrounding its inclusion in the Anti-Drug Abuse Act of 1986 (the 1986 Act) and the assumptions that underlay the conclusion that crack offenders should be punished significantly more severely than powder cocaine offenders.   The result of the 100-to-1 ratio is that sentences for crack cocaine offenders are three to six times longer than those for powder cocaine offenders. As the United States Sentencing Commission concluded in a 2002 report, a “major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it into crack” cocaine.

The Court then discussed the status of the relevant guidelines in light of Booker, examining the government’s arguments that “the Guidelines adopting the 100-to-1 ratio are an exception to the general freedom that sentencing courts have to apply the § 3553(a) factors.”  The Court first rejected the government’s grounding of the proposition in the text of the 1986 Act, “declin[ing] to read any implicit directive into [the] congressional silence” on the appropriate length of sentences not dictated by the mandatory minima and maxima in the 1986 Act itself.  The Court observed that “[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms,” citing 28 U.S.C. § 994(h)’s direction regarding career offenders.

Next, the Court rejected the government’s argument that Congress’s 1995 disapproval of the Commission’s implementation of the 1:1 ratio in the guidelines “made clear that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio.”  The Court observed that “nothing in Congress’ 1995

reaction to the Commission-proposed 1-to-1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress’ 1995 action required the Commission to recommend a ‘revision of the drug quantity ratio of crack cocaine to powder cocaine.’”

The Court further observed that the 2007 amendments result in a crack/powder ratio that is not consistently 100-to-1, but that Congress did not disapprove the amendments.

Finally, the Court rejected the government’s arguments that consideration of the 100-to-1 ratio would result in unwarranted sentencing disparities in violation of section 3553(a)(6).  The two kinds of disparities considered were those arising from “cliffs” in the guideline ranges near and at the mandatory minima, and those arising from different sentencing judges’ opinions regarding the proper relationship between crack offenders and powder cocaine offenders.  The

Court observed that both are inherent in the guidelines system, and that “advisory Guidelines combined with appellate review for reasonableness will . . . not eliminate variations between district courts, but . . . Booker recognized that some departures from uniformity were a necessary cost of the remedy [Booker] adopted.”  The Court finally noted that, if an unwarranted disparity arises, the district court is required to address it under section 3553(a)(6).

Applying these principles, the Court concluded that the sentence in the instant case did not constitute an abuse of discretion, and reversed the Fourth Circuit’s order vacating the sentence.