Crack Cocaine Case Analysis

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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).”

	Related Links 7th Circuit Court of Appeals Related Article Crack, powder cocaine are different

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.