Examining Crack Cocaine Sentencing in a Post- Kimbrough World

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08-CASSIDY.DOC 1/29/2009 3:29:23 PM 130 AKRON LAW REVIEW [42:105 B. Kimbrough’s and Gall’s Effect on Crack Cocaine Sentencing The Supreme Court in Kimbrough explicitly authorized the district courts to consider the crack/powder disparity when sentencing an offender. 213 After Gall, appellate courts may only review the sentence for reasonableness, “i.e., whether the District Judge abused his discretion in determining that the § 3553(a) factors supported [the sentence imposed] and justified a substantial deviation from the Guidelines range.” 214 Absent a finding of abuse of discretion, appellate courts must now yield to the district courts’ judgments. 215 Under this new system, the potential for excessive disparity in crack cocaine sentencing may be greater than ever. Judges—even those within the same courthouse—are likely to differ in opinion as to what crack/powder ratio is proper when sentencing an offender. Indeed, the Kimbrough Court stated “some departures from uniformity [are] a necessary cost of the remedy we [have] adopted.” 216 The Court continued, “district courts must take account of sentencing practices in other courts” and the “disparities must be weighed against the other § 3553(a) factors.” 217 Following this reasoning, does the Court expect district court judges to know what ratios all other district courts are applying? Assuming these judges had this information, are they then expected to impose the Guidelines ratio even if they find a departure is warranted, simply to avoid disparity among the courts? It is not hard to imagine this practice resulting in deviations in crack sentencing in cases decided soon after Kimbrough— before the level of disparity is realized—and judges deciding cases years from now following the Guidelines more closely, in an effort to remedy what will have become a disparate system. If that is the case, the discretion afforded to judges post-Kimbrough becomes moot. It seems unlikely that judges from different districts will give deference to the ratios being applied in other districts when considering the § 3553(a) factors in a case before them. The more logical outcome is that judges will begin to pursue their own policy agendas. This will undoubtedly result in offenders with identical records who are charged 213. Kimbrough v. United States, 128 S. Ct. 558, 575 (2007). 214. Gall v. United States, 128 S. Ct. 586, 600 (2007). 215. See id. at 597 (“[T]he appellate court . . . must give due deference to the district court's decision that the §3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”). 216. Kimbrough, 128 S. Ct. at 574. 217. Id.
08-CASSIDY.DOC 1/29/2009 3:29:23 PM 2009] EXAMINING CRACK COCAINE SENTENCING IN A POST-KIMBROUGH WORLD 131 with identical crimes receiving vastly different sentences simply because of the ideological views of the judges hearing their cases. Judges in favor of “get tough” drug policies will be reluctant to apply a downward departure at sentencing, while those that believe the nation’s drug laws are in need of reform will take full advantage of the Court’s Kimbrough holding. A system in which some judges impose harsh penalties and others impose lax sentences for the same crimes is anathema to § 3553(a)(6), which instructs sentencing courts “to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 218 While it is too early to tell exactly how judges will apply Kimbrough, disparate sentencing is more likely to occur post-Kimbrough and Gall, as opposed to post-Booker. The post-Booker appellate check, which prevented substantial disparity, is no longer in play post- Kimbrough. Cases decided in the wake of Kimbrough and Gall illustrate the now-limited role appellate courts have when reviewing a district court’s sentence. After Kimbrough, Pho was abrogated 219 and Eura was vacated and remanded, with the Fourth Circuit ultimately affirming per curiam the district court’s original reduced sentence. 220 The Third, Eighth, Ninth and Eleventh Circuits have also vacated sentences and remanded cases in which they initially held district courts could not consider the crack/powder disparity at sentencing. 221 While some of the circuits have been careful to note that Kimbrough does not require judges to consider the crack/powder disparity in all cocaine cases, 222 Gall has severely limited the appellate courts’ authority to overturn sentences by judges who do. 218. 18 U.S.C. § 3553(a)(6) (2006). 219. See Kimbrough,128 S. Ct. at 558. 220. United States v. Eura, 268 F. App’x. 245, 249 (4th Cir. 2008). 221. See e.g., United States v. Wise, 515 F.3d 207, 223 (3rd Cir. 2008); United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008) (stating that pre-Kimbrough “neither Booker nor § 3553(a) authorizes district courts to reject the 100:1 ratio,” but post-Kimbrough, the district may consider the disparity caused by the ratio); United States v. Medina-Casteneda, 511 F.3d 1246, 1249 (9th Cir. 2008) (stating on remand that the district court is to consider “whether the disparity between crack and powder cocaine produced a sentence ‘greater than necessary’ under § 3553(a)”); United States v. Stratton, 519 F.3d 1305, 1306 (11th Cir. 2008) (stating that prior precedent held federal courts were “not at liberty to supplant [Congress’s] policy decision” concerning the crack/powder disparity, but recognizing that Kimbrough overruled such precedent”). 222. See, e.g., Roberson, 517 F.3d at 995 (noting “[w]e do not believe . . . Kimbrough means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity”); Stratton, 519 F.3d at 1307 (holding “[w]e do not suggest . . . that the district court must impose any particular sentence or that the district court is not free to impose the same sentence after considering the § 3553(a) factors”).
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Examining Crack Cocaine Sentencing in a Post- Kimbrough World

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