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Kimbrough: Crack Guidelines Advisory Only

By Tim Cone

In Kimbrough v. U.S., No. 06-6330 (Dec. 10, 2007), the Supreme Court held that under Booker the crack cocaine Guidelines, like all other Guidelines, are advisory only. A district judge therefore may consider the crack/powder disparity when sentencing crack cocaine offenders, and impose a below-Guidelines sentence if a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing set forth at 18 U.S.C. § 3553(a).
The Court rejected the government?s arguments that Congressional policy prohibits sentencing courts from disagreeing with the 100:1 ratio. The Court did not find support for this argument in Congress? silence on this point, and noted that Neal v. U.S. was consistent with the view that Congressional statutes do not necessarily foreclose a different Guideline approach. The Court also noted that Congress recently acquiesced in the 2007 Guidelines which reduced the crack/powder disparity. The Court also rejected the argument that disagreements with the 100:1 ratio would increase sentencing disparities. The Court noted some departures from uniformity were a necessary result of its Booker decision. The Court further noted that the Sentencing Commission itself had reported that the 100:1 ratio created disproportionately harsh sanctions, thus lending support to the view that a Guidelines-based sentence would be "greater than necessary."
The Court concluded that Kimbrough?s sentence, 4.5 years below the bottom of the Guidelines range, was reasonable.

Full post as published by U.S. Supreme Court Blog on December 10, 2007 (boomark / email).