District Court May Categorically Reject Crack Guidelines Based Solely on Policy Disagreement, Even Without Individual Mitigating Circumstances

Spears v. United States, No. 08-5721 (U.S. Jan. 21, 2009) (per curiam)

You thought it was already clear from Kimbrough that a district court may categorically reject the crack guidelines based solely on the court's policy disagreement with the crack/powder ratio? So did a majority of the Supreme Court, hence this summary reversal of the Eighth Circuit's contrary understanding of Kimbrough.

In this case, Spears was convicted of participating in a large-scale crack and powder cocaine conspiracy. The district judge thought the then-100:1 crack/powder ratio was excessive, so he recalculated the guidelines using a 20:1 ratio and ultimately sentenced Spears to the mandatory minimum of 20 years' imprisonment. On cross-appeal, the Government argued that the district court could not simply subsitute its own ratio for the Guidelines' ratio. The Eighth Circuit agreed, and vacated the sentence. Spears petitioned for cert, and the Supreme Court GVR'ed for reconsideration in light of Kimbrough. The Eighth Circuit again vacated the sentence, holding, inexplicably, that the district court could not categorically reject the Guidelines' ratio and replace it with a 20:1 ratio.

Spears again sought cert, with the result being this summary reversal that essentially says, "Remember Kimbrough? We meant it." The Court made crystal clear that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines[,]" adopting the "correct interpration of [Kimbrough] . . . offered by the dissent in Spears II:

"The Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances—no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates ‘an unwarranted disparity within the meaning of §3553(a),’ and is ‘at odds with §3553(a).’ The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines—its policy view that the 100-to-1 ratio creates an unwarranted disparity." 533 F. 3d, at 719 (opinion of Colloton, J.) (citations omitted).

Justice Kennedy would have granted cert and set the case for oral argument, rather than summarily reversing the Eighth Circuit. Justice Thomas dissented without explanation. Chief Justice Roberts, joined by Justice Alito, dissented largely on his view that summary reversal was inappropriate given the lack of a circuit split on what he viewed as an issue "arguably distinct" from that in Kimbrough (whether a district court can categorically adopt its own ratio, as opposed to simply determining that the 100:1 ratio would produce an excessive sentence in an individual case), and that the issue should be allowed to percolate in the lower courts before the Court steps in to settle their hash.

The majority responded that the Chief's characterization of Kimbrough's holding---requiring an individualized determination in addition to a policy disagreement before rejecting the crack Guidelines---"was [actually] the Government's position in Kimbrough, which did not prevail." And as for percolation,

The dissent says that "Apprendi, Booker, Rita, Gall, and Kimbrough have given the lower courts a good deal to digest over a relatively short period." True enough—and we should therefore promptly remove from the menu the Eighth Circuit’s offering, a smuggled-in dish that is indigestible. Finally, the dissent points out that other courts have followed the Eighth Circuit’s course, see United States v. Russell, 537 F. 3d 6, 11 (CA1 2008); United States v. Gunter, 527 F. 3d 282, 286 (CA3 2008). Both of those courts, like the Eighth Circuit, seized upon the language from Kimbrough quoted above in order to stand by the course they had adopted pre-Kimbrough—and in the case of the First Circuit, despite this Court’s having vacated and remanded, in light of Kimbrough, the prior First Circuit judgment which had established that course. See Pho v. United States, 552 U. S. ___ (2008). If the error of those opinions is, as we think, evident, they demonstrate the need to clarify at once the holding of Kimbrough.

(By the way, if it wasn't already obvious from the rest of the opinion, that paragraph makes it pretty easy to guess the author.)

Finally, note that, although the issue arises here in the context of the crack guidelines, the rationale of Kimbrough should apply with equal force to any other guidelines that lack an empircal basis, and there's lots of those.

And if you're interested in a behind-the-scenes look at the saga that was Spears, start here.