Oral Argument: Oct. 2, 2007
Appealed from: United States Court of Appeals, Fourth Circuit (May 9, 2006)
SIXTH AMENDMENT, CRIMINAL PROCEDURE, UNITED STATES SENTENCING COMMISSION, SENTENCING GUIDELINES, ANTI-DRUG ABUSE ACT, 100:1 POWDER/CRACK COCAINE RATIO
Derrick Kimbrough received 180 months of imprisonment resulting from his guilty plea to distributing 50 or more grams of crack cocaine, distributing cocaine, conspiring to distribute 50 grams or more of crack cocaine, and possession of a firearm in connection with a drug-trafficking crime. The prosecution successfully appealed Kimbrough’s 180-month sentence because the sentence fell below the minimum prescribed by statute and the Federal Sentencing Guidelines. The U.S. Supreme Court will assess what factors district courts can take into account in establishing criminal sentences and if, when considering those factors, federal district courts can impose sentences below the Federal Sentencing Guidelines. If the Supreme Court concludes that federal district courts can rely on U.S. Sentencing Commission reports in addition to defendant-specific factors such as prior criminal records, military participation, and employment status to impose sentences below the Federal-Sentencing Guideline-prescribed minimums, sentences for similarly situated defendants will not be consistent and will be determined on an individual defendant, case-by-case basis. This decision will clarify what factors federal district court judges may take into account when imposing and reviewing criminal sentences.
1. In carrying out the mandate of §3553(a) to impose a sentence that is “sufficient but not greater than necessary” on a defendant, may a district court consider either the impact of the so-called “100:1 crack/powder ratio” implemented in the U.S. Sentencing Guidelines or the reports and recommendations of the U.S. Sentencing Commission in 1995, 1997, and 2002 regarding the ratio?
2. In carrying out the mandate of §3553(a) to impose a sentence that is “sufficient but not greater than necessary” upon a defendant, how is a district court to consider and balance the various factors spelled out in the statute, and in particular, subsection (a)(6), which addresses “the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct”?
Can federal district courts consider U.S. Sentencing Commission reports, indicating a gross disparity between crack cocaine and powder cocaine sentences, to impose defendant-specific sentences that fall below the prescribed minimum sentence duration mandated in the U.S. Sentencing Guidelines? Additionally, given the statutory requirement to avoid incongruent sentences for defendants with similar criminal records and convictions, how should district courts apply provisions within the same sentencing statues that require a case-by-case analysis of the nature and circumstances of each offense and the history and characteristics of each defendant in imposing consistent, yet appropriate sentences?
The Disparity between Crack Cocaine and Powder Cocaine Penalties
Following the 1986 cocaine-induced death of University of Maryland basketball star Len Bias, Congress passed the Anti-Drug Abuse Act of 1986, a mandatory minimum sentencing statute for first-offense narcotic trafficking. See Eric E. Sterling, The Sentencing Boomerang: Drug Prohibition Politics and Reform, 40 Vill. L. Rev. 2, 383 (1995). Bias’s death and the ongoing drug scare of the 1980s were major catalysts for the adoption of the Act. See id. The Act laid down mandatory sentencing minimums for specific types of narcotics, including the “100:1 powder/crack ratio” penalty for powder cocaine trafficking and alternatively, crack cocaine (also known as base cocaine) trafficking. Consequently, a person caught trafficking one gram of crack cocaine faces a similar sentence to a person caught trafficking 100 grams of powder cocaine. 21 U.S.C. § 841. Shortly after the enactment of the Act, the United States Sentencing Commission (“USSC”) incorporated the “100:1 powder/crack ratio” penalty into Federal Sentencing Guidelines. See Brief for Respondent at 6.
The most current version of the law, 21 U.S.C. § 841, embodies the “100:1 powder/crack ratio” penalty minimums for crack cocaine trafficking, in conjunction with the less stringent minimums for powder cocaine trafficking. The current laws also embody the Anti-Drug Abuse Act of 1988, codified under 21 U.S.C. § 844, which increased the disparity between crack cocaine and powder cocaine penalties by imposing mandatory jail time for first-offense simple possession of crack cocaine. As a result of this legislation, crack cocaine is the only narcotic where simple possession of more than five grams automatically triggers a minimum sentence of five years in prison. U.S. Sent’g Comm’n: Cocaine and Federal Sentencing Policy 4 (May 2007). Alternatively, simple possession of any quantity of any other substance by a first-time offender, including powder cocaine, is a misdemeanor offense punishable by a maximum of one year in prison. Id.
Most recently, Senator Joe Biden has introduced the 2007 Drug Sentencing Reform and Cocaine Kingpin Trafficking Act in an effort to combat the penalty inequalities by reducing the “100:1 powder/crack ratio” to a 20:1 ratio. Biden’s proposed legislation also aims to reduce the racially discriminatory impact of the “100:1 powder/crack ratio.” Id. According to the USSC’s May 2007 Report, 81.8 percent of federal crack cocaine offenders sentenced in 2006 were African-American, while only 8.8 percent were white. U.S. Sent’g Comm’n: Cocaine and Federal Sentencing Policy 15 (May 2007). Two of the most notable USSC recommendations in the 2007 report, ask Congress to increase the amount of crack cocaine required to trigger the five-year mandatory minimum sentence and repeal the mandatory minimum penalty for simple crack cocaine possession. Id. at 6-9.
The Crime and Lower Court Proceedings
On May 24, 2004, two Norfolk, Virginia police officers spotted Derrick Kimbrough behind the wheel of a parked car in a well-known drug-trafficking area. Brief for Respondent at 10-11. Kimbrough allowed the officers to search the vehicle, revealing sixty-two grams of powder cocaine and fifty-six grams of crack cocaine. Id. at 11. Kimbrough and a fellow passenger attempted to flee the scene during the search, but Kimbrough was apprehended. Id.
In 2005, Kimbrough pleaded guilty to distributing fifty or more grams of crack cocaine, distributing cocaine, conspiring to distribute fifty or more grams of crack cocaine, and possession of a firearm in connection with a drug-trafficking crime. Brief for Respondent at 2. According to the Federal Sentencing Guidelines, Kimbrough should have been sentenced to between 228 to 270 months for all of his charges. See Brief for Petitioner at 9. However, Judge Raymond Jackson of the United State District Court for the Eastern District of Virginia chose a more lenient penalty, sentencing Kimbrough to a minimum 180-month sentence. See Brief for Petitioner at 10. According to the trial court opinion, Judge Jackson justified the sentence by collectively relying on 18 U.S.C. § 3553(a), the 2002 United States Sentencing Commission’s Report to Congress on Cocaine and Federal Sentencing Policy, and the 2005 U.S. Supreme Court decision in United States v. Booker. Id. at 10-12. In accordance with 18 U.S.C. § 3553(a), Judge Jackson considered multiple factors, including Kimbrough’s honorable discharge from the armed forces, his limited criminal record only marked by misdemeanors, the desire to impose an appropriate sentence, the U.S. Sentencing Commissions’ reports indicating penalty disparities and racially discriminatory sentences due to the “100:1 powder/crack ratio,” and Kimbrough’s steady employment status after his discharge from the armed services. Brief for Petitioner 10-12. Judge Jackson also relied on the USSC’s 2002 report which identified the gross and unjustified disparity between crack cocaine and powder cocaine drug-trafficking penalties. Id. at 8-10.
On appeal by the prosecution, the United States Court of Appeals for the Fourth Circuit found the sentence unreasonable in accordance with the Fourth Circuit’s 2006 decision in United States v. Eura. The Fourth Circuit vacated Kimbrough’s sentence and remanded the case for resentencing. See U.S. v. Kimbrough, No. 05-4554, slip op. at 799 (4th Cir. May 9, 2006).
Kimbrough and Current Posture before Supreme Court
Derrick Kimbrough successfully petitioned a writ of certiorari to the U.S. Supreme Court to determine whether district court judges may consider specific circumstances particular to each individual defendant, and impose sentences below Federal Sentencing Guideline sentence minimums. Additionally, the Court will determine how district court judges should conduct a case-by-case analysis of the nature and circumstances of each offense and the history and characteristics of each particular defendant in imposing consistent, yet appropriate sentences.
The Federal Sentencing Guidelines ("Guidelines") are considerably more stringent for possession of crack cocaine than for powder cocaine. According to the so-called “100:1 powder/crack ratio,” a person possessing five grams of crack faces the same sentence as one possessing five hundred grams of powder. The underlying issue in Kimbrough is whether a judge may set a sentence for a criminal that falls below the Guidelines’ prescribed minimums. Kimbrough argues the district court has the discretion to consider the Guidelines as merely one of many advisory factors that guide the determination of the sentence. See Brief for Petitioner at 4-5. On the other hand, the United States argues that the ratio may not be reduced simply because the sentencing judge disagrees with it. Brief for Respondent at 19. Further, the United States argues the “approach is a recipe for widespread disparity, and the Court should reject it as inconsistent with congressional intent.” Id. at 19.
The harshness of the Guidelines has drawn criticism from civil rights groups. For example, the NAACP sees the “100:1 powder/crack ratio” as “having a uniquely negative impact on the African-American community.” Amicus Brief for NAACP at 2. Even the U.S. Sentencing Commission in its most recent report to Congress has recommended changing the “100:1 powder/crack ratio” to lessen the disparity between crack and cocaine sentencing. U.S. Sentencing Commission Amendments to the Sentencing Guidelines.
Kimbrough, and its companion case Gall v. United States,are the latest Sixth Amendment cases following United States v. Booker, which call into question a judge’s discretion in setting sentences. The Sixth Amendment provides that a criminal defendant has the right to have facts that increase his or her sentence determined by a jury beyond a reasonable doubt. In Booker, the Court held that any fact, other than a prior conviction, that increased the sentence of a defendant in a federal criminal case over the maximum range provided by the Federal Sentencing Guidelines, must be determined by a jury. See United States v. Booker, 543 U.S. 220 (2005). The court in Booker struck down the part of the Federal Sentencing Act that made the Federal Sentencing Guidelines mandatory, leaving the Guidelines to function as one of many advisory factors for the judge to consider in sentencing a criminal. Id.
In this case, the Government argues that the Guidelines are a direct expression of Congressional will and that the “Guidelines must reflect and incorporate Congress’s policy judgments.” Id. at 29. Thus, they are a direct mandate to the District Court and do not fall under the post-Booker understanding of the Guidelines as merely advisory. Id.
A decision in favor of Kimbrough would result in greater discretion for sentencing courts and potentially lighter sentences for some criminals. In contrast, a ruling in favor of the United States would limit this discretion and result in clear and unambiguous sentencing guidelines for these crimes. Additionally, the ruling in this case will likely clarify the meaning of the term “advisory” as used in Booker and provide guidance to sentencing Courts in applying sentencing statutes.
The statutory guideline for district courts in determining a sentence, that the sentence must be “sufficient, but not greater than necessary,” is codified in 18 U.S.C. § 3553(a). The sentence must be an adequate reflection of the seriousness of the offense, must encourage respect for the law, and must provide a just punishment. 18 U.S.C. § 3553(a)(2). Rather than a black-and-white rule, the guideline includes several factors that courts must consider prior to sentencing. Among these are the nature of, and individual circumstances surrounding, the offense; the defendant’s history and characteristics; the sentencing guidelines range; and the need to avoid unwarranted sentence disparities. 18 U.S.C. § 3553(a)(6).
Kimbrough’s argument emphasizes the importance of the judicial discretion of the sentencing judge: no one of the factors should be elevated over the others in determining a sentence; and the Sentencing Guidelines are merely one of many factors that the judge is to weigh in sentencing. Brief for Petitioner at 4-5. On Kimbrough's view, district courts have the authority to independently assess whether the “100:1 powder/crack cocaine ratio” produces an appropriate outcome for the particular case at hand when sentencing defendants pursuant to 18 U.S.C. § 3553(a). Id. at 5.
The Fourth Circuit disagreed with the District Court's sentence and held that Kimbrough, pursuant to the United States Sentencing Commission ("USSC") guidelines, should have been sentenced between 228 and 270 months for all of his charges. See U.S. v. Kimbrough, 174 Fed.Appx. 798, 799. Kimbrough argues that both judicial and statutory authority allowed the district court to take into account any information that is reliable and relevant to sentencing, even if such information conflicted with the Guidelines. Brief for Petitioner at 17. Indeed, the district court considered a variety of documents, including reports from the USSC, strongly supporting the idea that the “100:1 powder/crack ratio” results in sentences greater than necessary under 18 U.S.C. § 3553(a)(2). Id. at 14.
Relying on U.S. v. Eura, the Fourth Circuit Court of Appeals held that a sentence that falls outside the range offered by the Guidelines is “per se unreasonable” when it is based on a judge’s disagreement with the “100:1 powder/crack ratio.” See U.S. v. Kimbrough, 174 Fed.Appx. 798, 799. Kimbrough counters that Congress never actually directed the USSC to incorporate the ratio into the Guidelines and it has even acknowledged that the ratio is problematic. Brief for Petitioner at 15. The plain meaning of Booker is that the Guidelines must be read to be merely advisory rather than mandatory. Id. at 34. Thus, the per se rule of the Fourth Circuit was contrary to statute and case precedent and leads to a violation of the Sixth Amendment by making the Guidelines mandatory. Id. at 17.
Kimbrough calls the Fourth Circuit Court of Appeals' rule a “blanket prohibition.” Such a “blanket prohibition” on a judge’s discretion in considering the unwarranted effects of the ratio violates the Sixth Amendment. Id. at 24. It misinterprets Congress’s will with regard to both the ratio and the Sentencing Guidelines. Id. Kimbrough thus concludes that the Fourth Circuit does not apply the post-Booker standard by which the Guidelines are construed as advisory, rather than mandatory. Id. at 25.
The ACLU, NAACP, the Sentencing Project and the Center for the Study of Race and Law at the University of Virginia School of Law, and the National Association of Criminal Defense Lawyers (“NACDL”) have filed amicus curiae briefs supporting Kimbrough. The Federal Public and Community Defenders together with the National Association of Federal Defenders have also filed amici curiae briefs.
The NAACP points out the vast racial disparities in the Sentencing Guidelines, which in turn lead to a widespread distrust for the law. See Brief for NAACP. Further, the District court’s consideration of the severe racial disparities was reasonable under federal law. The ACLU points out that the Guidelines’ factors for crack are not supported by empirical historical data, unlike other factors. Brief for ACLU at 8. If a sentencing guideline is not based on empirical historical data, the court should determine the soundness of the guideline by assessing it in light of the factors specified in the residual sentencing statute. Brief for ACLU at 14.
The Government takes the view that the 100:1 ratio is a congressional policy decision directed to the courts. Brief for Respondent at 19. It notes that the Guidelines also adopted this ratio in order to establish a sentencing structure that is both “proportional and consistent.” Id. Violating a congressional sentencing policy, as the District Court did in this case, is therefore “necessarily unreasonable.” Id. at 20. Courts can only defy congressional policy determinations when such policy violates the Constitution. Id. at 23.
The Government notes that Congress provided the sentencing factors codified at 18 U.S.C. § 3553 and the requirement to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth” in the statute. 18 U.S.C. § 3553. Unless there is a basis for departing from the sentence set forth in the Guidelines, therefore, Congress required the sentencing court to follow the Guidelines. Id. at 24. The Government acknowledges that Booker modified the Guidelines, making them advisory rather than mandatory. Id. But Booker also imposed a new abuse-of-discretion standard of review for Courts of Appeals to use in evaluating sentencing decisions made by district courts. Id. This reasonableness standard charges courts of appeals to determine whether or not a particular sentence given by a district court is unreasonable. Id.
The Government argues that even post-Booker, district courts do not have limitless discretion and are bound by any congressional policy directed toward sentencing courts concerning particular offenses. Brief for Respondent at 25. If a congressionally mandated policy conflicts with a district court’s understanding of 3553(a), the will of Congress must control. Id. Hence, if a court disagrees with statutory policies that are directed to the sentencing court, and the court imposes a sentence based on such disagreement, the resulting sentence will be deemed unreasonable. Id. at 26. Further, the District Court is bound by Section 3553(a)(6)’s directive regarding the need to avoid unwarranted sentence disparities among individual defendants that have similar records. Id. at 27. Allowing each judge the discretion to assess the relative severity of certain conduct would bring about the disparity that Section 3553(a)(6) seeks to avoid. Id.
The Government points out that the U.S. Sentencing Commission is also bound by congressional policy determinations. Brief for Respondent at 27. Congress provided the Commission with substantial guidance regarding the general principles that it wished to incorporate into the Guidelines. Id. Post-Booker, when Congress expresses its will wholly through the Guidelines, the district court has discretion to sentence based on policy considerations that differ from those reflected in the Guidelines. Id. at 29. This discretion is of course subject to reasonableness review at the appellate level. Id.
However, when Congress expresses its will “through direct sentencing requirements imposed on courts,” a situation where the “Guidelines must reflect and incorporate Congress’s policy judgments” it is a direct mandate to district courts. Brief for Respondent at 29. The Government argues that the Guidelines are, in this case, merely conforming to the expressed will of Congress to avoid “unwarranted disparities.” Id. at 30. For a sentencing court to disagree with the Guidelines for policy reasons is for it to disagree with a direct congressional mandate. Id.
The Government explicates that two features distinguish mandatory guidelines from those that are merely advisory. Brief for Respondent at 30. First, in 28 U.S.C. 994(a), Congress directed the Sentencing Commission to create guidelines that are consistent with “all pertinent provisions of any Federal statute.” Id. When these provisions contain sentencing directives that are binding on district courts, the Sentencing Commission cannot simply override them. Id. Second, the Commission, like Congress, has an obligation to provide a “rational sentencing scheme.” Id. The Commission must follow the will of Congress. Id. Not to do so would result in “an unworkable and incoherent system.” Id. Individual judges must abide by these Guidelines. Id.
Thus, the Government concludes that Congress specifically set the 100:1 ratio and mandates that sentencing courts should respect the ratio. Brief for Respondent at 31. On the Government's view, the Petitioner is attempting to limit Congress’s policy to merely statutory minimum terms, and this is unsustainable. Id. To the contrary, it was the clear intention of Congress, with the Anti-Drug Abuse Act of 1986, to impose significantly greater penalties on crack cocaine distributors than similarly situated powder cocaine distributors. Id. at 31-32. Any sentence that equates the severity of a crack offense to the severity of a powder cocaine offense involving a similar amount violates the mandate of Congressional policy. Id. To violate the ratio would result in “drastic and obviously unwarranted sentencing disparities, or ‘cliffs,’ based on insignificant differences in drug quantities.” Id. at 33.
Further, the Government notes that Congress rejected the 1995 proposed amendment to the Guidelines which would replace the 100:1 ratio with a 1:1 ratio, expressing the view that the ratio was too low and that the sentence for crack should exceed that for powder cocaine. Id. at 35. Congress also indicated that more modest revisions would be acceptable but the revisions would have to be made to both the Guidelines and the 1986 Act. Id. Congress has since rejected the Commission’s recommendations to revise the ratio. Brief for Respondent at 42. In contrast, the Government claims, the petitioner’s view would leave district courts free to adopt any view they wished with regard to the comparative severity of drugs. Id. at 39. The only limiting factors would be the statutory sentencing ranges and reasonableness review. Id.
Finally, the Government argues that if courts can, at their own discretion, modify or ignore the ratio, the inevitable result would lead to wide disparities in drug sentences. Brief for Respondent at 40. If a judge is free to adopt any policy with regard to individual drugs, defendants who are guilty of the same illegal conduct will find themselves in a situation akin to a lottery in which they might receive very different sentences depending merely on which judge is drawn. Id. Each judge could create an individual ratio- “one judge might use 5:1, another 20:1, and yet a third 100:1” Id.
Ultimately, the Government concludes, Petitioner’s argument conflicts with the 1986 Act because it gives the sentencing judge the discretion to “adopt whatever policy he deems appropriate with regard to individual drugs.” Brief for Respondent at 40. Petitioner frames the issue in this case as whether or not individual district courts may disagree with the Guidelines in imposing sentences for crack-cocaine offenses. Id. at 42. However, because it was Congress’s policy that directed the Sentencing Commission, the issue is actually a disagreement with Congress’s policy determination. Id. at 43. The Government holds that a rule that barred district courts from making reductions in a defendant’s sentence based on the judge’s disagreement with the ratio would not make the Guidelines mandatory. Id. at 43. The Guidelines set a base level that is based on the ratio but the ultimate sentencing range of the Guidelines remains advisory. Id. Sentencing courts may vary from the sentencing range based on any factor other than their disagreement with the 100:1 ratio as long as the sentence is consistent with Section 3553(a) and holds up to a reasonableness review. Id. at 44. The sentencing courts may rely on any facts, including those “facts already reflected in the jury verdict or in the defendant’s admissions, or on other policy considerations, in determining that an above- or below-Guidelines sentence is justified.” Id. In other words, the district court is not entirely without discretion in sentencing and retains the freedom to tailor the sentence to the individual criminal as long as it maintains respect for Congress’s policy determination.
In Kimbrough v. United States, the Supreme Court will determine whether district courts can use defendant-specific factors and previously written United States Sentencing Commission reports, addressed to Congress, in imposing sentences below the Sentencing Guideline prescribed minimums. Kimbrough argues that the Court has previously determined that the Sentencing Guidelines serve only an advisory function, acting as one of many factors in determining a particular defendant’s sentence. The United States argues that Congress enacted legislation that is unavoidable and that courts must adhere to the statutorily prescribed minimums in order to avoid inconsistent sentences for defendants with similar convictions. The Court’s decision may give greater deference and authority to District Court judges by allowing them to fashion defendant-specific sentences in relation to particular defendants’ criminal records, employment status, and role in society. Alternatively, the Court may affirm the Fourth Circuit’s remand and require sentencing judges to adhere to the Sentencing Guideline and statutorily imposed minimums. The Court’s decision will not only clarify misconceptions regarding the Federal Sentencing Guideline’s role in the judicial system, it will determine the amount of judicial discretion granted to district court judges.
Edited by: Tim Birnbaum