Federal Judiciary

Yep, if the guideline in question is Career Offender. (And, we think, the same logic must apply to the "fast-track" guidelines for illegal reentry cases as well). United States v. Mitchell, 2010 WL 4105220 (9th Cir. Oct. 20, 2010), decision available here.

Players: Decision by Judge Goodwin (right).

Facts: Mitchell, a Career Offender, pleaded guilty to distributing over fifty grams of a mixture containing crack. Id. at *1. The district court varied downward 43 months from Career Offender, id., because of its disagreement with the crack/powder sentencing disparity. Id. at *3.

Issue(s): Mitchell ?challenges . . . the district judge?s consideration of the crack/powder disparity in his sentence.? Id. at *1.

Held: ?We . . . join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.? Id. at *1.

?Acceding to the [Supreme] Court?s confirmation of the advisory only use of the Sentencing Guidelines, the circuits that have recently addressed the crack/powder differential in sentencing a career offender have concluded that ?district judges are at liberty to reject any Guideline on policy grounds ? though they must act reasonably when using that power.? United States v. Corner, 590 F.3d 411, 415 (7th Cir. 2010) (en banc) . . . . We agree with this analysis and now follow it in this circuit.? Id. at *4 (emphases in original) (footnote and citations omitted).

?Because the sentencing judge carefully considered and explained his downward adjustment of Mitchell?s imprisonment term to account for the crack/powder differential, even though Mitchell was a serial offender, the judge was entitled to disagree with the policy behind the advisory Sentencing Guideline and did not abuse his discretion in sentencing Mitchell.? Id. at *5.

Of Note: What, exactly, was Mitchell?s beef? It isn?t clear from the opinion. The original fight in the opening brief was over the judge?s failure to fully vary down to a 1:1 crack / powder ratio. See Appellant?s Opening Brief, 2009 WL 3760268. This argument obviously pre-dated the Fair Sentencing Act of 2010 (?F.S.A.?) ? which changed the crack / powder ratio needed to trigger the mandatory minimums from 100-to-1 to 18-to-1. See general summary here.

Along the course of briefing the dispute veered into the power of the district court to vary from Career Offender based on a policy dispute with the crack laws: a happy diversion for defendants generally, though it didn?t do much for Mitchell himself.

How to Use: Those brainy folks at the San Diego FPD (and, in particular, AFPD Steve Hubachek) have seized on a broader impact of Mitchell: a sub-silencio rejection of a previous, unfortunate Ninth Circuit decision, United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009).

In Gonzalez-Zotelo, the Ninth reversed a § 3553(a) variance by a district judge who rejected the government?s refusal to give fast-track to one illegal reentry defendant when it had given the deal to another, more-culpable defendant the same day. Id. at *738. See blog describing decision here. Judge Silverman wrote that Kimbrough didn?t permit § 3553(a) variances for policy disagreements with Section 1326 fast-track disparities. Id. at *740.

Zip forward a year to Mitchell, and the Ninth now relies on the Seventh Circuit?s en banc decision in Corner to hold that a court can use Kimbrough for a § 3553(a) variance based on policy disagreements with the crack laws. 2010 WL 4105220 at *4.

The Seventh has since recognized that Corner changes everything ? it has just held that Corner overrules its own limitations on Kimbrough variances for fast-track disparities. United States v. Reyes-Hernandez, 2010 WL 3911336, *10-*13 (7th Cir. Oct. 7, 2010). And, the Ninth has just adopted Corner - ergo, the Ninth appears to have rejected its own regrettable Gonzalez-Zotelo decision.

Like the more-enlightened Seventh, the Ninth should now take Gonzalez-Zotelo en banc and get rid of a decision that cannot be squared with Kimbrough and post-Booker sentencing.

For Further Reading: The Fair Sentencing Act of 2010 changed the crack/powder ratio for mandatory-minimums. The Sentencing Commission just adopted ?emergency amendments? that affect the guidelines for these drugs. For a summary of this new amendment, see the Sentencing Resource Counsel brief here.

Image of the Honorable Alfred T. Goodwin from http://www.uoregonlaw.com/s/293/index.aspx?sid=293&gid=1&pgid=445

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Full post as published by Ninth Circuit Blog on October 24, 2010 (boomark / email).