![\"seventh](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2009\/07\/seventh-circuit4.jpg\" "\\"seventh")
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It has been widely recognized for years that federal sentences for the crack version of cocaine are unjustifiably harsh relative to sentences for the powder version.\u00a0 As far back as 1995, the United States Sentencing Commission — a body not generally known for its lenience — called for equalization between crack and powder sentences.\u00a0 However, progress in softening the so-called 100:1 crack-powder disparity has proceeded at a glacial pace.\u00a0 In 2007, the Commission finally succeeded in reducing (but not eliminating)\u00a0the disparity as it exists in \u00a7 2D1.1 of\u00a0the sentencing guidelines, but statutory disparities will require congressional action to correct.\u00a0\u00a0Fortunately, a\u00a0bipartisan House bill cleared subcommittee last week, and the prospects for legislative reform appear unusually strong this term.<\/p>\n
\u00a0As reformers have argued their case in the Commission and Congress, the 100:1 disparity has collided with the Supreme Court’s reinvigorated Sixth Amendment jurispudence.\u00a0 In light of constitutional concerns, the Court transformed the sentencing guidelines from mandatory to advisory in 2005.\u00a0 Then, in 2007, the Court affirmed what should have been obvious (but had been rejected by the Seventh Circuit and other intermediate courts of appeals): the crack-powder disparity contained in\u00a0\u00a7 2D1.1 is no more binding on sentencing judges than any other aspect of the guidelines.\u00a0<\/p>\n
But the Seventh Circuit remains resistant to the\u00a0new world of advisory guidelines.\u00a0\u00a0The 100:1 ratio still lives on in \u00a7 4B1.1, the career offender guideline.\u00a0 And, in United States v. Harris, <\/em>536 F.3d 798 (7th Cir. 2008), the Seventh Circuit held that\u00a0district court\u00a0judges still may not act to correct or soften the crack-powder disparity when sentencing career offenders.\u00a0 The court reasoned that the disparity in \u00a7 4B1.1 was congressionally mandated, while the disparity in \u00a7 2D1.1 was not.\u00a0<\/p>\n Last week, though, the Seventh Circuit limited the reach of\u00a0Harris <\/em>in United States v. Knox <\/a><\/em>(Nos. 06-4101, 06-4376 & 07-1813) (Tinder, J.).\u00a0 <\/p>\n In Knox, <\/em>the court held that the crack-powder disparity is not binding on crack offenders convicted of just\u00a0conspiracy <\/em>to distribute crack, as opposed to distribution or possession with intent to distribute.\u00a0 Although conspirators are covered by\u00a0\u00a7 4B1.1, the Commission went beyond what was congressionally mandated in this regard.\u00a0 Since application of the crack-powder disparity to conspirators is only\u00a0the Commission’s policy choice, and not Congress’s, it is not binding on\u00a0sentencing judges.<\/p>\n It strikes me as\u00a0a bit\u00a0odd to distinguish between\u00a0defendants convicted of conspiracy to distribute and\u00a0defendants convicted of possession with intent to distribute, but I am happy to see further chipping away at the unjust crack-powder disparity.\u00a0 Better still would be a reversal of Harris<\/em>.\u00a0 The basic point of the relevant Supreme Court jurisprudence is that the sentencing guidelines are now advisory.\u00a0 Period.\u00a0 It should not matter whether a particular provision of the guidelines was mandated by Congress or not — the whole package is nonbinding.\u00a0<\/p>\n Other new criminal cases this past week were:<\/p>\n United States v. Hensley<\/em> <\/a>(No. 08-1204) (Manion, J.) (affirming conviction and sentence in solicitation of minor case).<\/p>\n United States v. McNeil <\/a><\/em>(No. 08-1772) (Cudahy, J.) (finding plain error when sentencing court did not supplement presentence investigation report with information regarding status of state sentences).<\/p>\n United States v. Carter <\/a><\/em>(No. 09-1608) (Flaum, J.) (finding that evidence was improperly suppressed by district court; underlying search was illegal, but connection to suppressed evidence too attenuated).<\/p>\n United States v. Alexander <\/a><\/em>(No. 07-3718) (Tinder, J.) (holding that motion to suppress was\u00a0properly denied by district court).<\/p>\n