Crack cocaine defendant gets second chance at sentence

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Crack cocaine defendants may get a second chance at a below-guideline sentence, based on the inequity of the 100:1 crack to powder ratio, even if they didn’t specifically ask for one at sentencing.

Nor is it necessary that the trial judge have “rail[ed] against” the ratio to demonstrate that she would have imposed a lower sentence if she could have.

Under a Mar. 26 opinion by the Seventh Circuit, the cases of defendants sentenced before the U.S. Supreme Court’s decision in Kimbrough v. U.S., 128 S.Ct. 558 (2007), will get a limited remand to the trial judge, unless the judge made clear that she would have imposed the same sentence in any event.

This is the first published opinion from the Seventh Circuit to grant such a remand. The first time it considered such an appeal, it found that the district court would not have imposed a lower sentence even if it knew it had discretion to do so. U.S. v. White, 2008WL 8503 (7th Cir., Mar. 5, 2008).

According to the decision, released March 26, George E. Taylor pleaded guilty to distribution of crack cocaine and was sentenced by U.S. District Court Judge Barbara B. Crabb to 124 months in prison.

At sentencing, he made no objection to the sentence based on the 100:1 ratio of the weight of crack cocaine to the weight of powder cocaine.

At the time of the sentencing, the law in the Seventh Circuit was that, while a judge may impose a below-guideline sentence in a crack cocaine case, just as any other, the lower sentence may not be based on the sentencing judge’s policy disagreement with the guidelines’ disparate treatment of crack and powder.

After Taylor was sentenced and filed a notice of appeal, the Kimbrough case was decided, holding that the ratio was merely a judgment entitled to respect, but not uncritical acceptance, and that judges could base a below-guideline sentence on the ground that the crack guidelines are too harsh.

Opposing Taylor’s appeal, the government argued that, because Taylor made no objection based on the ratio, and the district court evinced to unhappiness with the guideline range that the ratio generated, there was no ground for resentencing.

But in an opinion by Judge Richard A. Posner, the Seventh Circuit disagreed.

The court noted that, prior to Kimbrough, district judges in the Seventh Circuit were not permitted to question the 100:1 ratio: “Even before Kimbrough, a sentencing judge could, if he wanted, rail against the 100:1 ratio, but that would have been spitting against the wind, since we had held that the ratio was not to be questioned by sentencing judges.”

Because of that situation, the court rejected the government’s argument that the district court’s silence could be equated to agreement.

At the time of Taylor’s sentence, the district court was unaware of her authority to impose a below-guideline sentence based on disagreement with the guidelines.

Therefore, the appellate court remanded to the trial court to reconsider in light of Kimbrough – the same procedure the court employed after the guidelines were first held advisory by the Supreme Court. See U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005).

For crack cases, however, a recent change in the guidelines adds a wrinkle to these limited remands that was not present after the Supreme Court held the guidelines advisory — the Sentencing Commission has reduced the guideline ranges for crack offenses and made the change retroactive.

The amendment, effective March 3, permits defendants to move the trial court for a reduction to conform to the new guidelines.

In light of that amendment, the court observed that remanding a case for possible resentencing in light of Kimbrough might seem pointless, since any judge minded to reduce a sentence could simply resentence under the new guideline.

Nevertheless, the court determined that a limited remand was still the appropriate remedy, but the district judge should consider the retroactive guidelines first.

The court directed that the district judge on remand should delay telling the court whether she is minded to resentence the defendant under Kimbrough.

Instead, the district court should first decide the defendant’s motion to reopen under the new guidelines (or consider it under her own initiative, if no motion is made).

The court directed that, only after considering the new guideline should the district judge indicate whether she is inclined to reduce the sentence further based on Kimbrough.

Michelle Jacobs, assistant U.S. attorney in the Eastern District of Wisconsin, said the procedure adopted by the appellate court avoids putting the district court in the awkward position of asking what it would have done at sentencing, and then having the court deal with the sec. 3582 motion, after the defendant has already sort of gotten the benefit.

“So, the court is saying, do the 3582 motion first, so everyone is working off the same guideline structure,” Jacobs said in an interview. “Then the Paladino remand may be unnecessary, if this is done first.”