Examining Crack Cocaine Sentencing in a Post- Kimbrough World

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08-CASSIDY.DOC 1/29/2009 3:29:23 PM 120 AKRON LAW REVIEW [42:105 A. United States v. Booker In Booker, the deeply fractured Court produced a total of six opinions, with two dueling 5-4 majorities. 120 Justice Stevens wrote what has been termed the “merits majority” opinion, answering the question of whether the application of the Guidelines violated the Sixth Amendment as articulated in Apprendi. 121 The other majority opinion, viewed as the “remedial majority,” was written by Justice Breyer and addressed the question of how to remedy the Sixth Amendment violation identified by the Court. 122 In 2003, a jury found Booker guilty of possessing at least 50 grams of crack cocaine after hearing evidence that he had just over 90 grams in his duffel bag. 123 The facts found by the jury called for a Guidelines sentence of 210-262 months. 124 At sentencing, however, the judge found additional facts. 125 By a preponderance of the evidence, the judge found Booker possessed 566 grams over and above the 92.5 grams found by the jury. 126 Following the Sentencing Guidelines, the judge’s findings increased Booker’s base level offense from 32 to 36. 127 The four-point difference increased Booker’s minimum sentence by 20 years; the change now called for a minimum sentence of 30 years and a maximum of life in prison. 128 The district court judge sentenced Booker to the minimum, 30 years in prison. 129 The Sixth Amendment issue in Booker was all too similar to the issue present in both Apprendi and Blakely—all three cases excessively delegated determinate fact-finding decisions to the judge, rather than the jury. The Booker Court sought to curtail the growing trend that “the judge, not the jury, . . . determined the upper limits of sentencing.” 130 In its merits opinion, the Court referenced § 3553(b)(1), which provided that the sentencing court “shall impose a sentence of the kind and within constitutionally significant). 119. 543 U.S. 220 (2005). 120. See Douglas A Berman, Conceptualizing Booker, 38 ARIZ. ST. L.J. 387, 387 (2006). 121. David M. Zlotnick, The Future of Federal Sentencing Policy: Learning Lessons from Republican Judicial Appointees in the Guidelines Era, 79 U. COLO. L. REV. 1, 11-12 (2008). 122. Id. at 12. 123. United States v. Booker, 543 U.S. 220, 235 (2005). 124. Id. 125. Id. 126. Id. 127. United States v. Booker, 375 F.3d 508, 509 (7th Cir. 2004). 128. Id. 129. Booker, 543 U.S. at 235. 130. Id. at 236.
08-CASSIDY.DOC 1/29/2009 3:29:23 PM 2009] EXAMINING CRACK COCAINE SENTENCING IN A POST-KIMBROUGH WORLD 121 the range” outlined in the Guidelines. 131 This provision, the Court held, made “[t]he Guidelines, as written . . . mandatory and binding on all judges.” 132 Unable to distinguish between the Guidelines and Washington’s sentencing scheme in Blakely, 133 the Court held that the Guidelines violated the Sixth Amendment. 134 To remedy the constitutional violation, the remedial opinion found § 3553(b)(1) was “incompatible” with the merits opinion and therefore had to be “severed and excised” from the statute. 135 The Court’s holding made the Guidelines “effectively advisory” so that the district courts could, after considering the Guidelines range, tailor a sentence that reflected the broader range of concerns set forth in § 3553(a). 136 Moreover, the Court held 18 U.S.C. § 3742(e), which addressed the handling of sentence appeals, must also be “severed and excised” because it was inextricably linked with the Guidelines’ mandatory sentencing provision. 137 Before the Court’s decision in Booker, § 3742(e) instructed appellate courts to determine whether a sentence was “unreasonable” with respect to the Guidelines range. 138 After Booker, the Court read the remaining provisions of the sentencing appeal statute to instruct appellate courts to determine whether sentences were “unreasonable” with respect to all the factors set forth in § 3553(a). 139 The Court’s holding in Booker created a sentencing muddle. 140 The merits opinion, which invalidated the Guidelines, continued to build on the Court’s new Sixth Amendment jurisprudence. The remedial opinion, however, reintroduced the role of judicial fact-finding at sentencing. 141 In the words of one sentencing scholar, “Booker declared that the federal sentencing system could no longer rely upon mandated and tightly directed judicial fact-finding, but as a remedy it created a system which now depends upon discretionary and loosely directed judicial fact- 131. Id. at 234. 132. Id. 133. Id. at 235 (stating that “[t]here is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases”). 134. Id. at 244. 135. United States v. Booker, 543 U.S. 220, 245 (2005). 136. Id. 137. Id. 138. Id. at 261. 139. Id. at 260-65. 140. See Berman, supra note 120, at 387. “Read independently, each majority opinion in Booker seems conceptually muddled; read together, the two Booker rulings seem almost conceptually nonsensical.” Id. 141. Id. at 407.
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Examining Crack Cocaine Sentencing in a Post- Kimbrough World

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