The Seventh Circuit continues to struggle with the question of what it means for the federal sentencing guidelines to be “advisory.”  In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory guidelines system violated the Sixth Amendment.  The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory.  Then, in Kimbrough v. United States, 128 S. Ct. 558 (2007), the Court confirmed what even the government had recognized and conceded: “advisory” means that a district court judge may impose a sentence outside the recommended guidelines range on the basis of a policy disagreement with the guidelines.

But the intermediate federal appellate courts have been slow to follow Booker to its logical conclusion — which is why Kimbrough was necessary in the first place.  Even after Kimbrough, several circuits, including the Seventh, have maintained that policy choices contained in § 4B1.1, the career offender guideline, remain binding on district court judges.  This is particularly important, and unfortunate, to the extent that § 4B1.1 contains the infamous 100:1 disparity in the treatment of crack and powder forms of cocaine.  That is a policy choice that district court judges ought to reject, and many doubtlessly would reject, if they were free to do so.

Last year, in United States v. Liddell, 543 F.3d 877 (7th Cir. 2008), a panel of the Seventh Circuit suggested that the court might be willing to reconsider its precedent on § 4B1.1.  But then Friday’s decision in United States v. Welton (No. 08-3799) slammed the door shut. 

Writing for the Welton panel, Judge Bauer expressly disavowed Liddell “to the extent that Liddell is inconsistent with [earlier holdings] that a district court may not rely on the 100:1 crack/powder disparity embedded in  § 4B1.1 as a basis for imposing a non-Guidelines sentence.”  Moreover, because of the avowed overruling of Liddell, Welton was circulated to the entire court, and only three judges voted to rehear the case en banc.  (On behalf of these three dissenters, Judge Williams wrote what seems to me a quite persuasive opinion in Welton arguing the basic “advisory means advisory” point.)

The majority’s position seems to boil down to this: the Sentencing Commission did not come up with § 4B1.1 on its own, but instead followed a directive contained in 28 U.S.C. § 994(h) that the guidelines “specify a sentence to a term of imprisonment at or near the [statutory] maximum” for career offenders.  The court thus sees  § 4B1.1 as embodying a congressional policy choice, which is binding on district judges because it is not merely a Commission policy choice.

There is no question that Congress could write a statute requiring district judges to sentence career offenders “at or near the statutory maximum.”  But Congress has not written such a statute.  By its terms, § 994(h) is a directive to the Sentencing Commission, not district judges.  And, if there is anything we have learned from Justice Scalia and his New Textualism, it is that Congress’s mere “policy choices” are not binding on anyone; it is only through the written law, as contained in statutes enacted through constitutionally mandated procedures, that Congress can make binding policy decisions. 

Instead of issuing a directive on career offenders to district judges, Congress chose to issue its directive to the Sentencing Commission, recognizing that its policy choice regarding career offenders would be embedded within, and necessarily qualified in all sorts of uncertain ways, by a larger structure of sentencing guidelines.  Rather than pass a stand-alone mandatory minimum statute, Congress evidently believed that it was best for the specifics of career-offender sentencing to be worked out in a way that cohered with the rest of the federal sentencing system.  Post-Booker, such coherence means that the career offender guideline should be treated as no less advisory than any other guideline.

Moreover, treating § 994(h) as binding on judges risks reversing Booker by the back door.  Section 994(h) is not the only congressional directive to the Sentencing Commission; the whole of § 994 is chock full of them.  Indeed, very nearly all of the guidelines could be fairly characterized as embodying one congressional policy choice or another.  (There is, in fact, an interesting debate in the scholarly literature over whether the worst features of the federal guidelines are due more to Congress’s or the Commission’s policy choices.)  Once we start saying that congressional policy choices embodied in the guidelines are binding, it is not clear where a principled line is to be drawn to save Booker.

In fact, the whole point of Booker is that Congress does not get to have its way when it comes to sentencing guidelines.  The Sixth Amendment trumps congressional preferences.  And the Sixth Amendment prohibits courts from treating the policies contained in sentencing guidelines as binding in the absence of jury fact-finding.

Judge Williams concluded her dissent with a call for the Supreme Court to address the § 4B1.1 problem in light of the disagreement it has sparked within the lower courts.  I heartily agree.

In the meantime, I take solace in the fact that there remains some interest and ability on the part of the Seventh Circuit to impose other sorts of limits on the mandatory application of the § 4B1.1 100:1 ratio, as evidence by the court’s recent decision in United States v. Knox, which held that the ratio is not binding on defendants convicted merely of conspiracy to commit a crack offense.  (My post on Knox is here.)