100:1 Crack/powder ratio: Cannot replace ratio, but can vary from GL based on case-specific reasons

In US v. Ricks, Nos. 05-4832, 4833 (3d Cir. 7/20/07), the Circuit followed its prior decision in US v. Gunter, 462 F.3d 237 (3d Cir. 2006), in ruling that although a district court can consider the 100:1 crack/powder differential in the guidelines and find the differential is "too vast," it may not categorically reject the ratio and substitute its own. Instead, in varying from the guideline range for crack cocaine, the court must give reasons for why the ratio is too harsh "when applied to the defendant." In doing so, the district court may draw on the reports of the Sentencing Commission finding that the 100:1 ratio treats crack offenses too severely.

On its surface, the Ricks decision may seem very straightforward: The district court judge found that the 100:1 ratio was too severe, based on the reports of the Sentencing Commission, and it sentenced instead based on the 20:1 ratio that the Sentencing Commission recommended. The 3rd Circuit then decided Gunter, holding that district courts can consider the crack/powder differential and the Sentencing Commission reports, but cannot substitute their own ratio. The district court here, in light of Gunter, thus erred mainly by expressly relying on the 20:1 ratio and not explaining its sentence in terms of case-specific factors.

But the Ricks decision, in reaching its holding, contains a number of statements that may strike some as inconsistent. On the one hand, the Circuit rules that the district court may not disagree with the 100:1 ratio as a "policy matter," but on the other hand, it rules that district courts may "view the sentencing disparity [based on this ratio] as too vast," based on the findings of the Sentencing Commission. The Circuit further states, "Indeed, as a matter of policy, we agree with the District Court that a 100-to-1 ratio leads to unjust sentences,..." but then indicates that only Congress can address this policy. This may leave district courts and counsel confused. What exactly counts as "policy" and what counts as a "case specific reason"?

The Circuit's reasoning, moreover, appears inconsistent with a case just decided by the Supreme Court -- US v. Rita, 2007 WL 1772146 (6/21/07) (see blog here). Rita, in ruling that at the district court level there is no presumption of reasonableness for a guidelines sentence, states that the district court can choose to sentence outside the range "because the Guideline sentence itself fails properly to reflect section 3553(a) considerations." Rita at *9. In a similar vein, Rita, suggests a district court may agree with arguments that the "Guidelines reflect an unsound judgment, or for example, that they do not generally treat certain defendant characteristics in the proper way." Rita at *12. These certainly sound like "policy" considerations.

Rita thus strongly suggests that the district courts, in independently considering the 3553(a) factors, may disagree with the policies on which the Guidelines are based. Nothing in Rita limits the district court to consideration of "case specific factors" and nothing suggests that the policies on which the Guidelines are based are sacrosanct. Indeed, treating the policies underlying the Guidelines as sacrosanct would make the Guidelines no longer truly "advisory." This would recreate the 6th Amendment problems that Booker supposedly resolved.

Hopefully these issues will be cleared up when the Supreme Court decides Kimbrough next term, which will address sentences below the Guidelines for crack cocaine. (See Prof. Berman's blog discussion here.) In the meantime, the bottom line in light of Ricks and Gunter is that sentences below the range in crack cases can be based on a finding that the 100:1 differential is "too vast," but the district court should not mention any other ratio, and should couch the reasons for the sentence expressly in terms of case-specific factors.