Moore and Spears: District Courts have Discretion to Reject the 100:1 Crack/Powder Cocaine Ratio
By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair
Last October we posted a blog entitled “The Judicial Wars Invoked by Crack Sentencing” (Oct. 24, 2008). The blog focused on a judicial tiff between the U.S. Supreme Court and the Eighth Circuit Court of Appeals in the case of James Eric Moore. We are pleased to report that the Supreme Court has finally put this issue to bed in two cases this Term.
This judicial controversy actually began on January 12, 2005 when the Supreme Court issued a controversial ruling that federal district courts were not required to impose precise sentences recommended by the U.S. Sentencing Guidelines. See: United States v. Booker, 543 U.S. 220 (2005). The Court said the Guidelines were advisory in nature, and not mandatory sentencing requirements. Id., at 245-46.
As we reported last October, U.S. District Court Judge Linda Reade, Northern District of Iowa, on November 21, 2005, imposed a term of 188 months of confinement and six years of supervised release on James Eric Moore following a jury conviction for possession with intent to distribute crack cocaine. Relying upon the recent Booker decision, Moore asked Judge Reade to impose a sentence below the one recommended by the Guidelines. The judge replied:
“With regard to the crack and power cocaine difference, that is the law. I’m applying the law as it currently stands. If that is going to be changed, that is a congressional matter. Congress is the one who looks at the guidelines and decides whether or not they should be put in—in force … It isn’t the judges. It’s the lawmakers, and I have taken an oath to apply the law, and that’s what I will do in this sentencing.”
Judge Reade’s sentencing decision was contrary to the Booker rationale. But she was not alone in her judicial reasoning. Many other federal judges shared her judicial sentiment. In fact, a little more than a year later an en banc Eighth Circuit Court of Appeals upheld the judicial reasoning of Judge Reade in the case of Steven Spears by saying that neither Booker nor the sentencing mandate of 28 U.S.C. § 3553(a) authorized federal district court judges to “reject” the 100:1 crack/power cocaine ratio set forth in the Guidelines. See: United States v. Spears, 469 F.3d 1166, 1178 (8th Cir. Dec. 5, 2006)[Remanding a district court’s decision that categorically rejected the 100:1 crack/powder cocaine ratio and instead utilized a 20:1 ratio to impose a 240-month sentence for possession of crack and powder cocaine].
The en banc Spears precedent paved the way the following week, December 13, 2006, for the Eighth Circuit to uphold Judge Reade’s sentencing decision in the James Eric Moore case. See: United States v. Moore, 470 F.3d 767, 770 (8th Cir. 2006).
Both Spears and Moore applied to the U.S. Supreme Court for writs of certiorari challenging the Eighth Circuit rulings in their cases. They based their appeals on the Booker rationale. While their requests for certiorari review were pending, the Supreme Court on December 10, 2007 handed down Kimbrough v. United States which overruled the longstanding legal premise employed by Judge Reade that federal district courts had to apply provisions of the Guidelines that made one gram of crack cocaine the equivalent of 100 grams of powder cocaine (more commonly known as the “100:1 ratio”) for sentencing purposes. See: 128 S.Ct. 558, 575, 169 L.Ed.2d 481 (207).
In the wake of Kimbrough, the Supreme Court on January 7, 2008 granted both Spears’ and Moore’s certiorari applications with the same identical language: “On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Kimbrough v. United States …” See: Spears v. United States, 128 S.Ct. 858, 169 L.Ed.2d 709 (2008); Moore v. United States, 128 S.Ct. 858, 169 L.Ed.2d 709 (2008).
Two months after the Supreme Court’s remand, the Eighth Circuit, on March 6, 2008, once again upheld Judge Reade’s sentencing decision in the James Eric Moore case, without any new briefing on the Kimbrough implications, saying that “[a]s there was then no circuit authority to the contrary, we presume the district court was aware that Booker granted it discretion to vary downward [from the Guidelines] based upon the impact of the crack guidelines on this defendant, but elected not to exercise its discretion.” See: United States v. Moore, 518 F.3d 577, 580 (8th Cir. 2008).
Slightly more than three months after the Eighth Circuit upheld Moore’s sentence for the second time, the appeals court on June 23, 2008 handed down a second en banc decision in the Steven Spears case that paid some judicial homage to Kimbrough by rejecting its previous precedent holding that the 100:1 crack/powder cocaine ratio was mandatory despite Booker and holding that this particular Guideline, like all the Guidelines, are “advisory only.” But appeals court nonetheless concluded that the district court had incorrectly varied from the 100:1 ratio when it substituted a 20:1 ratio to sentence Spears because the sentence was not based on an individualized, case-specific evaluation of the facts or the defendant pursuant to § 3553(a). The appeals court held that while a district court had the authority to determine the 100:1 ratio could result in a sentence harsher than necessary, it could not categorically reject the ratio as set forth by the Guidelines. See: United States v. Spears, 533 F.3d 715, 717 (8th Cir. 2008) [Spears II].
Moore and Spears once applied to the U.S. Supreme Court for certiorari review. This time Moore proceeded pro se and his application was supported by the U.S. Attorney representing the Government. The parties agreed that the Eighth Circuit had erred with the cursory attention it had paid to Kimbrough on remand. The Supreme Court on October 14, 2008 adopted the position taken by Moore and the Government and remanded his case a second time for sentencing reconsideration:
“When the District Court said that “[i]t isn’t the judges but Congress that ‘looks at the [G]uidelines and decides whether or not they should be put … in force,’ the court showed that it did not think it had the discretion later upheld by Kimbrough. The Eight Circuit’s first decision recognized this, describing the District Court as ‘concluding’ [correctly under circuit precedent] that it was not ‘authorized … to reject’ the crack/powder disparity. In light of the District Court’s comments at sentencing, the Court of Appeals should have remanded the case to the District Court for resentencing under Kimbrough. We express no views on how the District Court should exercise its discretion at resentencing.” See: Moore v. United States, 129 S.Ct. 4, 5, 92 L.Ed.2d 1 (2008).
On January 21, 2009, the Supreme Court also granted a second time certiorari relief to Steven Spears. See: Spears v. United States, 2009 U.S. LEXIS 864 (2009). In a more detailed analysis, the Court made its Kimbrough holding unmistakably clear to the Eighth Circuit:
“On remand, the Eight Circuit again reversed Spears’ sentence and remanded for resentencing. It concluded, again, that the District Court ‘may not categorically reject the ratio set forth by the Guidelines,’ and ‘impermissibly varied by replacing the 100:1 radio quantity ratio inherent in the advisory Guidelines range with a 20:1 quantity ratio.’ Spears again petitioned for a writ of certiorari. Because the Eighth Circuit’s decision on remand conflicts with our decision in Kimbrough, we grant the petition for certiorari and reverse.
“In Kimbrough, we held that ‘under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only,’ and that ‘it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder cocaine disparity yields a sentence greater than necessary to achieve § 3553(a)’s purpose, even in a mine-run case.’ The correct interpretation of that holding is the one offered by the dissent in Spears II:
“’The [Supreme] Court thus established that even when a particular defendant in a crack cocaine case presents no special mitigating circumstances – no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation – a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates an unwarranted disparity within the meaning of § 3553(a), and is at odds with § 3353(a). The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines – its policy view that the 100-to-1 ratio creates an unwarranted disparity.’
“Kimbrough considered and rejected the position taken by the [majority] Eighth Circuit below. It noted that ‘a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply.’ The implication was that an ‘inside the heartland’ departure (which is necessarily based on a policy disagreement with the Guidelines and necessarily disagrees on a categorical basis) may be entitled to less respect.’ Our opinion said, however, that the ‘crack cocaine Guidelines …
present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its characteristic institutional role.’ Kimbrough thus holds that with respect to the crack cocaine Guidelines, a categorical disagreement with and variance from the Guidelines is not suspect.
“That was indeed the point of Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case. The latter position was already established pre-Kimbrough [Booker], and the Government conceded as much in Kimbrough. That the Government did not prevail in Kimbrough proves that its concession – ‘that a district court may vary from the 100:1 ratio if it does so based on the individualized circumstances of a particular case’ – understated the extent of the district courts’ sentencing discretion.
“In drawing a distinction between ‘individualized, case-specific’ consideration of the Guidelines’ ratio and categorical rejection and replacement of that ratio, the Eighth Circuit relied in part on the following passage from Kimbrough:
“’The [district] court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with § 3353(a)’s overarching instruction to impose a sentence sufficient, but not greater than necessary to accomplish the sentencing goals advanced in § 3353(a).’
“This says that it was ‘appropriate’ for the District Court in Kimbrough not to specify what ratio it was using, but merely to proceed with § 3353(a) analysis. The Eighth Circuit read that to mean that district courts, in the course of their individual determinations, may not categorically disagree with the Guidelines radio, and (consequently) may not substitute their own ratio for that of the Guidelines. If it meant that, our vacating of the Eighth Circuit’s judgment in Spears I would have been inexplicable, because that supposedly impermissible disagreement and substitution was precisely the reasons for Spears I’s reversal of the District Court. As a logical matter, of course, rejection of the 100:1 ratio, explicitly approved by Kimbrough, necessarily implies an adoption of some other ratio to govern the mine-run case. A sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant’s sentence permits the adoption of a replacement ratio.
“To the extent the above quoted language has obscured Kimbrough’s holding, we now clarify that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines …
“The alternative approach – adopted by the Eighth Circuit – would likely yield one of two results. Either district courts would treat the Guidelines’ policy embodied in the crack-to-powder ratio as mandatory, believing that they are not entitled to vary based on ‘categorical’ policy disagreements with the Guidelines, or they would continue to vary, masking their categorical policy disagreements as ‘individualized determinations.’ The latter is institutionalized subterfuge. The former contradicts our holding in Kimbrough. Neither is an acceptable sentencing practice.” Id., at LEXIS 4-9 (Emphasis Original) [Internal Citations Omitted].
Moore and Spears made one thing crystal clear: a district court has unfettered discretion to reject the 100:1 crack/powder cocaine ratio for any reason it deems appropriate. That message was certainly delivered to the Eighth Circuit in no uncertain terms.
By Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair