Should Kimbrough be vacated and remanded given USSC amendments and SG concessions?
This weekend I read closely the Government’s brief in Kimbrough (available here). The brief is effective, but it largely dodges discussion of the import of the Sentencing Commission’s proposed crack guideline amendment (archive here), and it also makes a number of significant concessions. These concessions late in the Kimbrough brief especially caught my attention:
[A] court could disagree with the Guidelines’ treatment of a crack offender’s role in the offense, or (as was seemingly the case here) with the Guidelines’ treatment of the offender’s prior military service….
While courts could not rely on [US Sentencing Commission] reports as a basis for categorically disagreeing with the 100:1 ratio, courts could properly consider those reports in determining whether a particular defendant’s commission of a crack-cocaine offense implicates the policy reasons underlying Congress’s harsher treatment of crack offenses. See United States v. Ricks, No. 05-4832, 2007 WL 2068098, at *6 (3d Cir. July 20, 2007); United States v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006); Williams, 456 F.3d at 1369. For example, one of the justifications for the 100:1 ratio was that crack cocaine is more closely correlated with the commission of other serious crimes (based on the greater propensity of individuals trafficking in crack to carry weapons). See, e.g., United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 184-185 (1995). Accordingly, it would not be inconsistent with congressional policy for a court to conclude that, based on the individualized circumstance that a crack offender did not carry a weapon or otherwise threaten violence in connection with the offense, a downward variance would be appropriate.
In other words, in Kimbrough, the Government is conceding that almost any reasoned factual or policy basis for not following the crack guidelines in an individual case could justify a below-guideline crack sentence. (And, though not saying so explicitly, the Government seems to hint that Derrick Kimbrough’s below-guideline sentence might well have been justified on such grounds.) Throw in the fact that the USSC’s proposed crack amendments might be made retroactive (and thus applicable to Derrick Kimbrough) before the Supreme Court has a chance to render an opinion, and I am now thinking the Court’s best move might be to just kick Kimbrough — and all other crack cases in which cert. petitions are pending — back to the circuit courts for reconsideration.
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