Thursday, March 22, 2007

Fives Join Crack Chorus: Disagreement with 100:1 Powder-to-Crack Ratio Is Not a Valid Basis for Non-Guidelines Sentence

United States v. Leatch, No. 06-10526 (5th Cir. Mar. 22, 2007) (Jones, Jolly, Stewart) (per curiam)

Leatch was convicted of possession of at least 50 grams of crack with intent to distribute, and with conspiracy to do so. On the first go-round, the district court imposed a sentence of 324 months, which was the low end of a guideline range calculated using the 100-to-1 powder-to-crack drug quantity ratio. However, on a Booker remand the district court imposed a lower sentence after calculating Leatch's guideline range using the 20-to-1 ratio recommended in the Sentencing Commission's 2002 report to Congress on "Cocaine and Federal Sentencing Policy":
I’m varying in this case because I think the 100-to-1 disparity between powder cocaine and crack cocaine is inappropriate. I’ve followed with great interest the thoughtful district court decisions that address that. I am not going to attempt to restate on my own the various reasons for that. But for the reasons reflected in those decisions and also reflected in the Sentencing Commission’s determination that the 100-to-1 ratio was inappropriate . . . . [a]ccordingly, I’m going to follow what I understand to be the Sentencing Commission’s recommendation and use a 20-to-1 ratio.

Slip op. at 2. The court sentenced Leatch at the bottom of the resulting 262- to 327-month range, and the Government appealed.

The court of appeals, with little analysis of its own, decided to follow the lead of the other circuits which have held "that a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair." Slip op. at 3. The court reiterated, as it had in Tzep-Mejia, that non-Guideline sentences must be based on "individualized, case-specific factors" identified in 3553(a), rather than policy disagreements with the Guidelines. It therefore remanded the case for resentencing.

This decision isn't all that surprising in light of the policy/case-specific-facts dichotomy adopted by Tzep-Mejia, but it's still disappointing, for obvious reasons (how is this different from mandatory guidelines? and what about the fact that the Sentencing Commission itself has repudiated the 100:1 ratio?). For more commentary on Leatch and the powder-crack disparity (including some head-scratching as to why the Fifth Circuit didn't wait to see how Rita and Claiborne turn out before deciding Leatch), see Professor Berman's post here. (This guy's also been working on this issue a lot lately, so he might have some commentary as well, maybe even in the form of a haiku.)



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