Fifth Circuit gives short shrift to effort to do crack sentencing justice

In a brief per curiam opinion today in US v. Leatch, No. 06-10526 (5th Cir. Mar. 22, 2007) (available here), the Fifth Circuit follows the misguided herd of other circuits on post-Booker crack sentencing by holding 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.”   I have explained at length in many prior posts (see, e.g., here and here) why I view this kind of ruling seems so substantively misguided.

Rather than replay my core substantive concerns with the Leatch ruling, let me spotlight some other worries:

1.  Why decide this case now rather than await the Supreme Court’s direction in Claiborne?   As discussed here, apparently numerous circuit courts have decided to hold certain cases in abeyance pending Claiborne‘s resolution.  Leatch would seem especially worthy of holding.

2.  In the Claiborne oral argument, Justice Breyer said explicitly “one big power a judge has that they didn’t have before, after Booker, is to say the guideline itself is unreasonable.”  Claiborne transcript at 31.  And the Deputy SG also essentially conceded this point during the argument.  In light of the SG’s concession on Claiborne, the government arguably ought to now dispute the outcome in Leatch.