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U.S. v. Crawford, No. 06-30205 (3-28-08). The aftermath of Rita, Gall, and Kimbrough is being played out in the 9th. After the en banc in Carty/Zavala held that there was no presumption of reasonableness in a guideline sentence, and after it wiped clean sentencing precedent in its footnotes, the 9th now is going about affirming guideline sentences as, of course, reasonable. In this case, defendant appealed his 210 month sentence. He was convicted of crack distribution, and was found to be a career offender. Although the sentencing judge recognized the crack/cocaine disparity, it did not make a difference when the career offender enhancement kicked in. The court found that defendant's past convictions, and drug dealing, warranted the 210 month sentence. The 9th also found that the priors qualified as enhancements under the modified categorical approach. Two lessons we can begin to discern. First, guideline sentences will be affirmed as reasonable most of the time unless the attack on the guidelines is grounded in empirical data and solid facts (the defendant did do that here, but was trumped by the career offender enhancement. The career offender enhancement itself can be attacked as not being statistically supported by the Commission -- see its 15 Year report -- , although here the 9th found that the district court weighed and balanced the 3553 factors in conjunction with it.). Defense arguments trying to make use of Rita, Gall, and Kimbrough MUST be aggressive. Second, whenever the first sentence of an opinion starts off by stating that defendant's challenges have been answered by a "spate of recent sentencing decisions...." the outcome is rarely good for the defendant.

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