Little Sixth Circuit ruling flags enduring question over Kimbrough‘s reach

The Sixth Circuit today has a seemingly minor ruling today in US v. Vandewege, No. 07-2250 (6th Cir. April 8, 2009) (available here), in which the court remands for resentencing in a crack case. The case is blog-worthy, howevere, because a concurrence by Judge Gibbons spotlights an enduring question about the Supreme Court’s work in Kimbrough.  Here are snippets from her opinion: 

Succinctly stated, Kimbrough held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 128 S. Ct. at 843-44.  Neither Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests.  See Maj. Op. at 3 (asserting that “[t]he Supreme Court has made it clear” that district judges may depart from the Guidelines based upon any policy disagreement and claiming that the Court has established a higher standard of review for such departures).  Kimbrough instead expressly reserved the question as to whether a district court could categorically vary from the Guideline range based solely upon a policy disagreement with the Commission in an area other than the crack-cocaine disparity.  Kimbrough, 128 S. Ct. at 575 (noting that the “crack cocaine Guidelines . . . present no occasion for elaborative discussion” of the larger question of district courts’ ability to categorically disagree with the Commission’s policy decisions).  This was because the crack-cocaine Guidelines did “not exemplify the Commission’s exercise of its characteristic institutional role” of gathering “empirical data and national experience” and adjusting the Guideline range accordingly.  Id. (internal quotation and citation omitted); see also Spears, 129 S. Ct. at 842-43 (noting that Kimbrough’s holding allowing for categorical departures based upon policy disagreements applied only as to sentences for crack or cocaine offenses).  The Supreme Court only hinted that if a district court could categorically depart from the Guidelines range in an area where the Commission has exercised its “characteristic institutional role,” closer scrutiny of such a variance may be required.  Kimbrough, 128 S. Ct. at 575 (“[C]loser review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails to properly reflect § 3553(a) considerations even in a mine-run case.” (internal quotation and citation omitted)). Kimbrough has thus not “made it clear” that district courts may vary from the Guidelines based solely upon any policy disagreement.  Maj. Op. at 3.

Applied to the present case, this debate over Kimbrough and Spears’s portent is purely academic. Vandewege’s appeal presents us only with a defendant convicted of distributing cocaine, an area where the district courts’ authority to categorically depart from the Guidelines’ policy is clear.  We therefore have no occasion or authority to issue any holding bestowing upon district courts the carte blanche power to reject all policy decisions made by the Sentencing Commission, the dicta of the majority notwithstanding.  With these observations, I concur in the judgment of the court.