Kimbrough v. US

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Authorship: This page is maintained by Lyle Denniston.

Contents

[edit] Briefs and Documents

Docket: 06-6330

Oral Argument: Transcript

Judgment: REVERSED and REMANDED in an opinion by Justice Ginsburg

Merits briefs

[edit] Pre-Argument Articles

[edit] Argument Preview

By Lyle Denniston

In Kimbrough v. United States, the Supreme Court will consider the authority of federal judges to impose a criminal sentence for a cocaine crime below the 100-to-1 ratio of “crack” to powder cocaine. The ratio directly relates to the length of the sentence, as keyed to the quantity of the drug involved in the specific crime. For example: an individual who deals 5 grams of crack cocaine faces the same sentence as a defendant who deals 500 grams of powder cocaine.

[edit] Background

In the summer of 1986, two years after Congress had enacted the Sentencing Reform Act, the agency created to carry out the Act by crafting Guidelines for federal judges – the United States Sentencing Commission – had not yet begun issuing specific Guidelines. It would do so in a changed cultural and political climate. On June 19, 1986, a gifted basketball player at the University of Maryland, Leonard Kevin (“Len”) Bias, died of cardiac arrest from a cocaine overdose – two days after he had been drafted to play in the professional National Basketball Association. His death had an almost immediate impact in Congress: it enacted the Anti-Drug Abuse Act of 1986, setting mandatory minimum sentences for drug trafficking crimes. As part of the Act, Congress opted to require judges to follow the 100-to-1 crack-to-powder formula. In the words of the Sentencing Commission: “Because it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum penalty, this penalty structure is commonly referred to as the ‘100-to-1 drug quantity ratio.’” The Sentencing Commission wrote that formula into its Guidelines, and it has remained there since. (While somewhat modified on the point in the meantime, the Guidelines still provide ranges of sentences that include the disparity.)

Four times since then, the Commission has asked Congress to narrow the disparity. In its latest such report, in May 2007, the Commission said the formula “continues to come under universal criticism from representatives of the Judiciary, criminal justice practitioners, academics, and community interest groups, and inaction in this area is of increasing concern to many, including the Commission.” Congress has not responded to those requests, and in fact in 1995 it vetoed a Commission proposal to make the ratio 1-to-1. Congress is now considering whether to veto a proposed new Guideline that, the government has argued, would lead to ratios varying from 25-to-1 and 80-to-1, instead of 100-to-1..

The disparity has created a significant new problem for sentencing judges in drug cases as a result of the Supreme Court’s 2004 decision in United States v. Booker. The Court there ended the mandatory nature of the Guidelines, in order to save their constitutionality under the Sixth Amendment, and made them advisory. As a result, differences have grown up among federal judges on whether they must follow the disparity in sentencing, or whether the Sentencing Reform Act gives them discretion to deviate from it in order to avoid sentences that are “greater than necessary” and to avoid wide disparities in sentences for arguably similar crimes.

A federal judge in Virginia, faced with sentencing Derrick Kimbrough, confronted this sentencing dilemma. Kimbrough, a Gulf War veteran and construction worker, was arrested by city police in Norfolk, Va., on May 24, 2004, and charged with conspiracy with intent to distribute cocaine and possession with intent to distribute it. Prosecutors said that Kimbrough and another man arrested with him had been found with 56 grams of crack cocaine and 921 grams of cocaine powder. Kimbrough pleaded guilty to charges of conspiracy, possession, distribution and having a gun during a drug crime.

All things considered, Kimbrough faced a sentence in a Guidelines range of 228 to 270 months – 19 to 22 ½ years. His defense lawyer urged the trial judge to set a total sentence of 180 months – 15 years. Kimbrough, the lawyer noted, actually had more powder than crack when arrested. The judge, in response, called a sentence of 19 to 22 ½ years “ridiculous,” with the 100-to-1 disparity driving the offense level higher than necessary. The judge sentenced Kimbrough to 180 months, “clearly long enough under the circumstances,” the judge said.

The U.S. Court of Appeals for the Fourth Circuit, in a brief opinion, struck down the sentence. A sentence outside the Guideline range, it had said in an earlier and controlling opinion, was “per se unreasonable” if based on a disagreement with the 100-to1 ratio. The District Court, the Circuit Court said, may not vary from the advisory sentencing range, because that would be “totally…at odds with the will of Congress.” And, it said, a judge may not consider the Sentencing Commission views that the disparity should be narrowed

[edit] Petition for Certiorari

Kimbrough’s petition, filed on Sept. 5, 2006, raised two questions: whether a federal judge may consider the impact of the disparity in a given case, or on the views of the Sentencing Commission, and how is the sentencing judge to balance the factors spelled out in the Sentencing Reform Act to avoid “unwarranted disparity.” The U.S. Solicitor General, in a brief response, urged the Court to deny review – a position it had consistently taken in opposing review of other such cases.

Because the Court in the 2006-07 Term had under consideration the validity of sentences that were imposed below Guideline ranges (in Claiborne v. U.S., 06-5618), the Justices held the case, despite suggestions by the Solicitor General that it did not need to do so because the crack-powder disparity was not directly at issue before the Court. After Mario Claiborne died, the Court granted review in Kimbrough’s case, on the disparity issue, and in another below-range case that does not involve the crack-powder disparity, Gall v. U.S. (06-7949. (The Court proceeded to decide another post-Booker Guidelines case, Rita v. U.S., 06-5754, concluding in an 8-1 decision on June 21, 2007, that a sentence within a Guidelines range may be presumed on appeal to be “reasonable.”)

Kimbrough’s counsel in March 2007 had written to the Court to notify it of a deepening of a split in the Circuits, with the Third Circuit and the D.C. Circuit disagreeing with the Fourth Circuit on judicial discretion on the disparity issue. The Court granted review of Kimbrough’s case on June 11, 2007 – ten days before it decided Rita. Oral argument is scheduled for Oct. 2, 2007, at 11 a.m., immediately following argument in the Gall case.

[edit] Merits briefs

Kimbrough’s brief on the merits relied primarily upon five core arguments: first, Congress allows federal sentencing judges wide discretion to consider an array of information in choosing a sentence, and this discretion is reinforced by other factors the federal Act requires judges to consider and by the Booker decision making the Guidelines advisory only; second, there is a long tradition of appeals court deference to sentencing courts’ decisions and that has not been eliminated by the Guidelines; third, Congress has never directed the Sentencing Commission to incorporate the 100-to-1 disparity in the Guidelines; fourth, since Congress has mandated only mandatory minimums and maximums, it does not defy Congress’ will to look at factors other than the disparity; and, fifth, the Fourth Circuit’s view has, in effect, made the crack cocaine Guideline mandatory in direct violation of Booker.

“If allowed to stand,” the brief contended, “the Fourth Circuit’s per se rule would violate the Sixth Amendment because it impermissibly restricts district courts’ discretion in crack cocaine cases.. As this Court ruled in Booker, either the Sentencing Guidelines are advisory or they are unconstitutional….The Court can avoid the constitutional problem…by reiterating that the Sentencing Guidelines are not simply ‘effectively advisory,’ but are in fact ‘truly advisory,’ and by placing the sentencing range suggested by the Guidelines on an even footing with the other considerations” specified in the Act – including the “overarching command to impose a sentence no greater than necessary to meet the purposes of sentencing.” The crack-powder disparity does not rise above those other considerations, it contended.

On a practical level, the Kimbrough brief argued that the notion that “crack” crimes are inevitably more serious than “powder” crimes is flawed, since “the majority of crack cocaine defendants are smaller-scale, street-level dealers like Mr. Kimbrough.” The disparity thus “impacts far more low-level traffickers than it does the intended targets of the ratio – the mid- and high-level traffickers who distribute the powder that is turned into crack.”

Only near the brief’s close did it address, in summary fashion, one of the main arguments that have been made repeatedly against the crack-to-powder sentencing disparity: that is, that it has a distinct racial impact, because African-Americans made up the great majority of those accused of crack cocaine crimes. There is, as a result, the brief contended, a growing disparity between sentences for black and white federal defendants. “The practice of meting out punishment that is harsher to one group than another corrodes belief in equal justice under the law,” it concluded.

The United States’ merits brief, defending the crack-to-powder disparity, argued that Congress intended it in the beginning to be a necessary response to the development of crack cocaine “at the forefront of the national drug epidemic.” Moreover, it argued, Congress found crack to be a more dangerous drug than powder cocaine. Congress has taken no action since 1995 to alter the 100-to-1 ratio established in 1986, it noted.

On its legal points, the government brief made four basic arguments: first, Congress has the power to decide on punishment levels for federal crimes and may restrict judges’ sentencing discretion; second, the disparity is a specific policy determination that judges cannot evade even if a judge sought to rely upon other sentencing factors in the Reform Act; third, a sentence is unreasonable “when it rejects a specific congressional mandate,” and, fourth, any change in the 100-to-1 ratio must come from Congress, not from the Sentencing Commission or from sentencing judges.

Because Congress has mandated a binding policy, the brief contended, Kimbrough’s case does not raise the question of the authority of federal judges to impose sentences outside Guidelines ranges. “This case involves a sentencing structure created by Congress directly…”

It argued that “most” federal courts of appeals have agreed with its position that the disparity is a binding policy determination. If Kimbrough’s view were to prevail, the government asserted, “courts would be free to form whatever judgments they like about the comparative severity of crack-cocaine and other drug offenses, seemingly including use of 5:1, 20:1, or other judge-specific ratios, subject only to the applicable statutory minimum and maximum sentences and reasonableness review. That approach is a recipe for widespread disparity, and the Court should reject it as inconsistent with congressional intent.”

The government brief reserved its response to the challenge based on racial impacts to a footnote near the end of the brief. None of those who make that argument in Kimbrough’s case, it said, contend that use of the disparity would be unconstitutional as a form of race discrimination. In addition, it said, “all of the courts of appeals have long since rejected similar contentions,” citing rulings going back to 1992, with Supreme Court review denied in most of those cases.

Amicus briefs filed by the NAACP Legal Defense Fund, the National Association of Criminal Defense Lawyers, and the Sentencing Project and the Center for Study of Race and Law at the University of Virginia, make the racial argument against the disparity. Also filing amicus briefs were the American Civil Liberties Union and the Federal Public and Community Defenders. No amicus briefs have yet been filed on the government’s side.

[edit] Analysis

The Supreme Court has not made a tidy record in dealing with federal Sentencing Guidelines – beginning with its two majority opinions in Booker, looking two ways, constitutionally, on the Guidelines. With last Term’s decision in Rita, and its planned decisions this Term in Kimbrough and Gall, the Court could make notable progress toward clarifying just how much discretion federal judges retain in sentencing, the role of the remaining Guidelines regime and what sentences outside the ranges may qualify as “reasonable” under an advisory regime, and the core meaning of the multiple sentencing factors in the Sentencing Reform Act. The Court up to now has exhibited strong strains of pragmatism in this area, probably reflecting the basic jurisprudential approach of Justice Stephen G. Breyer, long identified with the Guidelines system.

In Kimbrough’s case, if the Court accepts the government’s argument that the crack-to-powder disparity is a matter of a simple legislative directive essentially outside the Guidelines’ advisory system, the fate of that ratio would then continue to be solely in the hands of Congress. An underlying social policy question, if the Court is willing to indulge itself in answering it, is whether the cited racial disparity in cocaine sentencing adds anything to judicial discretion in a way that might trump the hard-and-fast 100-to-1 ratio. Too much might be read into the Court’s repeated refusal to grant review on claims of racial discrimination in the disparity. The racial issue might be the most serious one confronting Justice Ruth Bader Ginsburg, whose votes decided both sides of the two 5-4 Booker rulings.


[edit] Oral Argument Analysis

  • This analysis, by Lyle Denniston, is a combined recap of the instant case and the other sentencing case argued the same day, Gall v. US. It originally appeared here on SCOTUSblog.

The Supreme Court, sounding even more skeptical about restricting federal judges’ power to select criminal sentences, spent two hours Tuesday in a seeming exploration of how to salvage something workable in the U.S. Sentencing Guidelines system and how to fashion a remaining – but diminished – role for appeals courts in reviewing actual sentences. One immediate impression was that the U.S. Circuit Courts may no longer be able to require sentencing judges to stay within the Guidelines except in highly unusual circumstances. The trend line in the argument appeared to be clear enough that Justice Stephen G. Breyer, a strong proponent of the Guidelines regime, at one point fretted about the end of that now-advisory federal sentencing system.

In fact, it also was Justice Breyer who summed up the task the Court confronted in back-to-back arguments in Gall v. U.S. (06-7949) and Kimbrough v. U.S. (06-6330), saying that, by the end of the day, the Court needed to hear the words it could use in a ruling that would “lead to considerable discretion” for sentencing judges, “but not totally.” While he said that “one of the major thrusts” of the Court’s past rulings was that judges should “follow the Guidelines,” even if they were not mandatory, it seemed clear that that admonition was losing some of its force with colleagues.

Justice Antonin Scalia, who with some reluctance has been going along with retaining the Guidelines system, led the chorus of argument on Tuesday that sentencing judges could openly disagree with the U.S. Sentencing Commission’s recommendations, even refusing to follow the policy judgments the Commission laid out, in order to make very certain that the Guidelines were strictly advisory. When one of the lawyers defending a below-Guideliines sentence suggested that judges would have to pay attention to the policy underlying a Guideline range and could deviate from it only if their “disagreement was reasonably grounded in the facts of the [particular] case,” Scalia countered that that concession was not necessary. “That is not my understanding” of the Court’s precedents on a sentencing regime that satisfies the Constitution, Scalia said.

The last time the Court took steps to preserve the Guidelines system, late last June, when it bowed to sentencing judges’ discretion but seemed to be preserving a fairly strong oversight role for the appeals courts, the vote was 8 to 1 (in Rita v. U.S.). But that vote was somewhat misleading at the time, because of the various positions taken by the Justices, and, on Tuesday, it was obvious that the pro-Guidelines sentiment is not that solid on the bench.

But, if the Guidelines themselves seemed to be losing some of their remaining luster among the Justices, it appeared even clearer that federal appeals courts could see their role in overseeing sentences fading into a distinctly secondary one. The Justices focused closely and repeatedly upon how to define appellate review that would not result, in practice, in making the Guidelines more or less binding. The view now embraced by several appeals courts that a sentence that fell outside a Guideline ranges would be found “unreasonable” if not justified by “extraordinary circumstances” went largely without visible support from the bench.

The Court appeared likely to have to thrash out in private discussions just what the appellate courts could do. No apparent consensus was evident during the two hours. “What is left for the appellate courts; is it just procedural,” or is it substantive, Chief Justice John G. Roberts, Jr., asked.

But the approach that the Justice Department advanced — giving appeals courts clear-cut authority to demand more justification from sentencing judges for sentences that fall “significantly outside” a Guideline range, with the need for stronger reasons rising with the amount of deviation from the range — was not embraced by any member of the Court. “We’re trying to develop a rule that can be applied sensibly,” Justice Scalia commented to Deputy Solicitor General Michael R. Dreeben. “You haven’t given us a rule…If I were a Court of Appeals judge, I would have no idea when I could [nullify an out-of-Guideline sentence] or when I could not.” Justice John Paul Stevens prodded Dreeben unsuccessfully, trying to get some more specific definition of what his “proportionality” approach would entail. Even Breyer said he was worried about Dreeben’s suggestion being too mathematical, too inflexible.

Both of the cases up for argument involved below-range sentences: Brian Michael Gall got 36 months on probation, instead of the Guideline minimum for his crime, 30 months in prison; Derrick Kimbrough got 15 years for dealing in cocaine, instead of the Guideline minimum of 19 years. But both sentences were nullified by federal appeals courts as unjustified.

The two cases, as they reached the Court, focus on whether it is “reasonable” for a sentencing judge to depart from the Guidelines – in Gall’s case, substituting probation for a prison term, in Kimbrough’s case, deviating from the 100-to-1 sentencing ratio for crack vs. powder cocaine.

In Gall, argued first Tuesday, the Justices’ examination of “reasonableness” focused not so much of when a below-range sentence would be deemed “unreasonable,” but on the division of sentencing authority between trial judges and appellate courts. While the general sentiment on the bench seemed to be in favor of tilting that balance decidedly in the trial judge’s favor, some of the Justices did express reservations if a trial judge felt that “anything goes” so long as the judge put on the record reasons for not following a Guideline range. Dreeben pressed for a significant role for appellate judges, giving them authority to take “a harder look at a case” where the judge had set a sentence “largely outside the Guidelines.” Gall’s lawyer, Washington attorney Jeffrey T. Green, argued that empowering appeals courts to insist upon stronger justifications was a move toward “a presumptive sentence,” subverting the advisory nature of the Guidelines and requiring judges to find facts that had not been found by a jury, in violation of the Sixth Amendment.

In Kimbrough, the Justices shifted from sentencing judges’ deviation from Guidelines ranges, to their authority to deviate from the Sentencing Commission’s view that Congress intended that crack cocaine crimes were more serious than powder cocaine crimes, and thus should draw much heavier sentences. The Commission has not felt free to deviate, in its Guidelines, from the 100-to-1 crack-to-powder ratio, even though Congress did not directly mandate that as a Guideline. While Dreeben, arguing this case, too, for the government, insisted that Congress had simply taken away all discretion for judges about maintaining the sentencing disparity, Kimbrough’s lawyer, Michael S. Nachmanoff, Federal Public Defender in Alexandria, Va., argued that trial judges should be free to set a cocaine sentence to fit the particular facts of each case, even if that resulted in a wide difference in sentencing of like cases. Nachmanoff went so far as to concede to Justice Ruth Bader Ginsburg that, under his approach, a judge in an individual case could opt to sentence for powder cocaine crimes as high as for crack crimes.

[edit] Opinion Analysis

Lyle Denniston originally posted this analysis on SCOTUSblog.

The Supreme Court on Monday gave federal judges new authority to set sentences for crack cocaine crimes below the range of punishment set by federal guidelines — a major restoration of flexibility for trial judges in drug cases. It ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh and may sentence below the range by considering the wide disparity between the recommended punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330).

The ruling validates the view of the U.S. Sentencing Commission that the 100-to-1 crack v. powder cocaine disparity may exaggerate the seriousness of crack crimes. The Court decision Monday rejected the Bush Administration argument that, because Congress had written the ratio into federal law, federal judges could not depart from it. The law, the Court concluded, only sets maximum and minimum sentences. “The statute says nothing about appropriate sentences within these brackets, and this Court declines to read any implicit directive into the congressional silence,” it declared.

The decision does not mean that crack cocaine crimes must be punished the same as powder cocaine crimes, but it does allow trial judges to disagree with the Guidelines’ much heavier recommendations for punishment of crack crimes. The decision also does not disturb the 100-to-1 ratio as it is spelled out in federal law (as opposed to the Guidelines); that ratio still applies at the minimum level of quantities of drugs involved in a given crime. Some 70 percent of those convicted of crack cocaines get the minimum sentence, many as a result of plea bargains. Above that level, though, the new ruling gives trial judges considerable range of choice, case by case.

Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as “reasonable.” The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a “deferential abuse-of-discretion standard” even when a trial sets sets a punishment below the range. Chief Justice John G. Roberts, Jr., announced that opinion in Stevens’ absence.

The Gall decision overturned a ruling by the Eighth Circuit Court that a below-Guidelines sentence would be reasonable only if justified by “extraordinary circumstances.” It was not for the Circuit Court to decide de novo the issue of whether a variation from a Guideline range was justified, it said.

In the last of three rulings on Monday, the Court decided unanimously that one does not “use” a gun, for purposes of imposing a mandatory five-year federal sentence, if the person receives the gun in a trade for drugs. Justice David H. Souter wrote the opinion in Watson v. U.S. (06-571). “The Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola,” Souter wrote.

The Kimbrough ruling on punishing crack cocaine offenses marks a major shift in the debate that has raged for 21 years over the much more severe sentencing required for those whose crimes involved crack cocaine. The Sentencing Commission for years asked Congress to ease the 100-to-1 ratio, and usually failed, but only recently gained some flexibility to vary the Guideline range outside that ratio. The disparity in punishment has often been challenged as racially oriented, because black offenders more often are involved in possessing or distributing crack than powder. Justice Ginsburg noted that 85 percent of those punished for crack crimes in federal court are black.

The 100-to-1 ratio is keyed to the quantity of the cocaine involved in the crime. As Justice Ginsburg explained it in practical effect: “a dealer in crack cocaine was subject to the same sentence range as a dealer in 100 times more powder cocaine.” One effect of this, Ginsburg noted, is “that 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 to crack.” The 100-to-1 Guidelines disparity has been somewhat relaxed as of Nov. 1 by the Sentencing Commission. The Commission is now pondering whether to make the reduced range retroactive. The change, allowed by Congress, would generally result in crack sentences between two and five times longer than for equal amounts of powder, rather than 100 times longer. With Monday’s decision, even that reduction is not binding on federal judges.

The Court’s ruling, besides shoring up the Sentencing Commission’s criticism of crack punishment, also bolsters federal trial judges who in recent months have been experimenting with easing up on crack cocaine sentences. Whether this was a valid use of their authority, because it might and does result in below-Guidelines sentences, was the issue the Court decided in Kimbrough.

The Gall case also involved a question of below-Guidelines sentencing, but was broader than the cocaine controversy. The issue there was whether any federal sentence that fell below a Guideline floor was valid if it was not supported by “extraordinary circumstances.”

The vote supporting the final outcome was the same in both sentencing cases: Chief Justice Roberts and Justices Ginsburg, Stevens, Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and David H. Souter in the majority, Justices Samuel A. Alito, Jr., and Clarence Thomas in dissent. Scalia wrote a separate concurring opinion in Kimbrough, and he and Souter wrote separate concurring opinions in Gall.

In the case of Derrick Kimbrough of Norfolk, Va., a federal judge found the sentence dictated by the Guideline range and the crack-powder disparity to be “ridiculous,” and imposed a sentence of 15 years, which was 4 1/2 years below the bottom of the range for his crime — conspiracy with intent to distribute and possession with intent to distribute crack. The Court said on Monday that the judge’s sentence “should survive appellate inspection.”

In the case of Brian Michael Gall, a young man who dealt the illegal drug “ecstasy” while in college in Iowa but went straight after giving up drugs and going into business in Arizona and Colorado, gave himself up and pleaded guilty to conspiracy to distribute the drug. The Guideline range for his crime was 30 to 37 months in prison, but the federal judge gave him 36 months on probation, largely based on his more recent behavior. The Court said that it found this sentence to be “reasoned and reasonable,” and thus reversed the Eighth Circuit ruling that it was not.

[edit] Links and further information

[edit] SCOTUSblog

[edit] Podcasts

  • Ohio State's Douglas Berman discusses the Supreme Court's ruling in this case in a 7-minute podcast. [1]
  • Ohio State's Douglas Berman previews the case in a 10-minute podcast. [2]

[edit] Blogs and other online analysis

  • On the American Constitution Society blog, Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums, previews Kimbrough in "Supreme Court considers crack sentencing; real change depends on Congress." [3]
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