Crack
Cocaine Case Analysis
June
14, 2006
The
decision flows logically from the court’s opinion in U.S. v. Galicia-Cardenas,
443 F.3d 553 (7th Cir. 2006). There, the court held that a district court may
not impose a below-guideline sentence to avoid differences in sentences imposed
for those in districts with fast-track programs for defendants convicted of illegal
re-entry, and districts without such programs.
The
day before Galicia-Cardenas was issued, the court had held in U.S. v. Martinez-Martinez,
442 F.3d 539 (7th Cir. 2006), that a defendant was not entitled to a below-guideline
sentence under those circumstances.
That
pattern has now been followed for the difference between defendants convicted
of crack and powder cocaine offenses.
In
U.S. v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005), the court wrote, “The
question in the present case is not whether after Booker a sentencing court may
use the differential as a reason to impose a shorter sentence than the one recommended
by the guidelines, but rather whether it is error for a court not to have
taken the differential into account (emphasis in original).”
With
the decision in the case at bar, the court has answered its hypothetical question
in the negative. In doing so, it abrogates the district court decisions in U.S.
v. Leroy, 373 F.Supp.2d 887 (E.D.Wis.2005), and U.S. v. Smith, 359 F.Supp.2d 771
(E.D.Wis.2005), in which the courts imposed below-guideline sentences for the
same reason as the district court in this case.
Given
the precedent set in Galicia-Cardenas, the court could not have done otherwise.
There, the court prohibited below-guideline sentences, where Congress had merely
acquiesced, after-the-fact, to the different treatment of illegal re-entry defendants.
The
difference between powder and crack cocaine, on the other hand, was initially
created by Congress, in 21 U.S.C. 841. Logically, if a difference to which Congress
only acquiesced is not grounds for a below-guideline sentence, a difference that
Congress created cannot be, either.
The
opinion also applies very broadly, making clear that any below-guideline sentence
must be based on characteristics specific to the defendant, rather than characteristics
that apply broadly to many defendants.
The
court wrote, “What makes a sentence ‘reasonable,’ however, depends
on the specifics of the case at hand; 18 U.S.C. 3553(a), which lists the factors
that control after Booker, does not include a factor such as ‘the judge thinks
the law misguided.’”
As
the court in U.S. v. Eura, 440 F.3d 625, 634 (4th Cir. 2006), stated more succinctly,
if less colorfully, “A sentencing court must identify the individual aspects
of the defendant’s case that fit within the factors listed in 18 U.S.C.
3553(a)…(emphasis in original).”
As
a final note, counsel should be aware of the terminology employed in this decision
(and followed in this analysis), and in others that are written by Judge Easterbrook.
In
U.S. v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006), writing for the court, Easterbrook
explained, “A sentencing difference is not a forbidden ‘disparity’
if it is justified by legitimate considerations…(emphasis in original).”
If you
read the decision in the case at bar carefully, you will notice that the term
“disparity” is never employed to refer to anything but an “unwarranted
disparity.” Any “disparity” that the court deems warranted is,
without exception, referred to as a “difference.”
Opinions
by other judges on the Circuit, are not so particular. The word “disparities”
is commonly used to refer to differences in sentences, whether warranted or unwarranted.
Whether
Easterbrook’s terminology will become standard practice among other judges
can’t be predicted, of course.
Regardless,
when writing a brief for the court, or especially if arguing a case before a panel
that includes Judge Easterbrook, attorneys should be aware that use of the term
“disparity” to refer to a “difference” that is warranted by
the guidelines apparently grates on his ear.
-
David Ziemer
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David
Ziemer can be reached by email.
