{"id":7266,"date":"2009-10-04T16:17:37","date_gmt":"2009-10-04T21:17:37","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=7266"},"modified":"2009-10-04T16:32:25","modified_gmt":"2009-10-04T21:32:25","slug":"seventh-circuit-criminal-case-of-the-week-reversing-a-liddell-progress-on-crack-sentencing","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/10\/seventh-circuit-criminal-case-of-the-week-reversing-a-liddell-progress-on-crack-sentencing\/","title":{"rendered":"Seventh Circuit Criminal Case of the Week: Reversing a Liddell Progress on Crack Sentencing"},"content":{"rendered":"

\"seventhThe Seventh Circuit continues to struggle with the question of what it means for the federal\u00a0sentencing guidelines to be “advisory.”\u00a0 In United States v. Booker<\/em>, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory\u00a0guidelines system violated the Sixth Amendment.\u00a0\u00a0The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory.\u00a0 Then, in\u00a0Kimbrough v. United States<\/em>, 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\u00a0guidelines.<\/p>\n

But the intermediate federal appellate courts have been\u00a0slow to follow Booker<\/em> to its logical conclusion — which is why Kimbrough <\/em>was necessary in the first place.\u00a0 Even after Kimbrough<\/em>, several circuits, including the Seventh, have\u00a0maintained\u00a0that policy choices contained in \u00a7 4B1.1, the career offender guideline, remain binding on district court judges.\u00a0 This is particularly important, and unfortunate, to the extent that \u00a7 4B1.1 contains the infamous\u00a0100:1 disparity in the treatment of crack and powder forms of cocaine.\u00a0 That is a policy choice that district court judges ought to reject, and many doubtlessly would reject,\u00a0if they were free to do so.<\/p>\n

Last year, in\u00a0United States v. Liddell, <\/em>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 \u00a7 4B1.1.\u00a0 But then Friday’s decision in\u00a0United States v. Welton <\/a><\/em>(No. 08-3799) slammed the door shut.\u00a0 <\/p>\n

Writing for the Welton<\/em> panel, Judge Bauer expressly disavowed Liddell <\/em>“to the extent that Liddell <\/em>is inconsistent with [earlier holdings] that a district court may not rely on the 100:1 crack\/powder disparity embedded in\u00a0\u00a0\u00a7 4B1.1 as a basis for imposing a non-Guidelines sentence.”\u00a0 Moreover, because of the avowed overruling of Liddell<\/em>, Welton<\/em> was circulated to the entire court, and only three judges voted to rehear the case en banc<\/em>.\u00a0 (On behalf of\u00a0these three\u00a0dissenters, Judge Williams wrote\u00a0what seems to me a quite persuasive\u00a0opinion in Welton<\/em> arguing the basic “advisory means advisory” point.)<\/p>\n

The majority’s position seems to boil down to this: the Sentencing Commission did not come up with \u00a7 4B1.1 on its own, but instead followed a directive\u00a0contained in 28 U.S.C. \u00a7 994(h) that\u00a0the guidelines “specify a sentence to a term of imprisonment at or near the [statutory] maximum” for career offenders.\u00a0\u00a0The court thus sees\u00a0\u00a0\u00a7 4B1.1 as embodying a congressional <\/em>policy choice, which is binding\u00a0on district judges because it is not merely a Commission policy choice.<\/p>\n

There is no question\u00a0that Congress could<\/em> write a statute requiring district judges to sentence career offenders “at or near the statutory maximum.”\u00a0 But Congress has not written such a statute.\u00a0 By its terms, \u00a7 994(h) is a directive to the Sentencing Commission, not district judges.\u00a0 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\u00a0contained in statutes enacted through\u00a0constitutionally mandated procedures,\u00a0that Congress can make binding policy decisions.\u00a0<\/p>\n

Instead of issuing a directive on career offenders to district judges, Congress chose to\u00a0issue its directive to the Sentencing Commission, recognizing that its policy choice\u00a0regarding career offenders would be embedded within, and necessarily qualified in all sorts of uncertain ways, by a larger structure of sentencing guidelines.\u00a0 Rather than pass a stand-alone mandatory minimum statute, Congress\u00a0evidently believed that it was best for the specifics of career-offender sentencing to be worked out\u00a0in a way that cohered with the rest of the federal sentencing system.\u00a0\u00a0Post-Booker<\/em>,\u00a0such coherence means that\u00a0the career offender guideline should be treated as no less advisory than any other guideline.<\/p>\n

Moreover, treating \u00a7 994(h) as binding on judges<\/em> risks reversing Booker<\/em> by the back door.\u00a0 Section 994(h) is not the only congressional directive to the Sentencing Commission; the whole of \u00a7 994 is chock full of them.\u00a0 Indeed, very nearly all of the guidelines could be fairly characterized as embodying\u00a0one congressional policy choice or another.\u00a0 (There is, in fact,\u00a0an interesting\u00a0debate 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.)\u00a0 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<\/em>.<\/p>\n

In fact, the whole point of Booker <\/em>is that Congress does not get to have its way when it comes to sentencing guidelines.\u00a0 The Sixth Amendment trumps congressional preferences.\u00a0 And the Sixth Amendment prohibits\u00a0courts from treating\u00a0the policies contained in sentencing guidelines as binding in the absence of jury fact-finding.<\/p>\n

Judge Williams concluded her dissent with a call for the Supreme Court to address the \u00a7 4B1.1 problem in light of the disagreement it has sparked within the lower courts.\u00a0 I heartily agree.<\/p>\n

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\u00a0\u00a7 4B1.1\u00a0100:1 ratio, as evidence by the court’s recent decision in\u00a0United States v. Knox,<\/em> which held that the ratio is not binding on defendants convicted merely of conspiracy to commit a crack offense.\u00a0 (My post on Knox <\/em>is\u00a0here<\/a>.)<\/p>\n","protected":false},"excerpt":{"rendered":"

The Seventh Circuit continues to struggle with the question of what it means for the federal\u00a0sentencing guidelines to be “advisory.”\u00a0 In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the then-mandatory\u00a0guidelines system violated the Sixth Amendment.\u00a0\u00a0The Court corrected the constitutional problem by converting the guidelines from mandatory to advisory.\u00a0 Then, […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[85,30,28,74,23],"tags":[],"class_list":["post-7266","post","type-post","status-publish","format-standard","hentry","category-circuit-splits","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/7266","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=7266"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/7266\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=7266"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=7266"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=7266"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}