Skip to main content

District Court Has Authority to Categorically Reject Sentencing Guidelines' Cocaine Powder-to-Crack Ratio; United States v. Ricks Overruled

In United States v. Russell, No. 07-4731 (3d Cir. April 23, 2009), the defendant challenged his sentence for possession with intent to distribute more than 5 grams of crack cocaine. The district court imposed a sentence of 87 months, the bottom of a guideline range of 87 to 108 months, which resulted from a total offense level of 27 and a criminal history category of III. The district court denied Russell's request for a variance, pursuant to 18 U.S.C. § 3553(a), from the 70-to-1 ratio recommended by the guidelines for his base offense level. As an alternative, Russell had suggested a 25-to-1 ratio, which would result in a sentence of 60 months, the statutory mandatory minimum sentence.

At sentencing, the district court had relied upon the Third Circuit's decision in United States v. Ricks, 494 F.3d 394 (3d Cir. 2007), to conclude that it did not have the authority to reject the guidelines' crack-to-powder ratio, nor to fashion an alternative ratio of its own. Russell argued that, subsequent to his sentencing, the Supreme Court rendered two decisions which expressly held that the sentencing court may in fact categorically reject the guidelines' crack-powder differential. In Kimbrough v. United States, 128 S.Ct. 556 (2007), the High Court recognized that a district court is permitted to categorically reject and vary from the crack guidelines. Recently, in Spears v. United States, 129 S.Ct. 840 (2009), the Court ruled that a district court is also permitted to apply a different crack-powder ratio which it believes will correct the disparity.

The Third Circuit reviewed the sentence for both an abuse of discretion and plain error. The court concluded that the district court's ruling should be remanded under either standard of review.

Based upon Kimbrough and Spears, the Third Circuit determined its prior ruling in Ricks was no longer good law. By doing so, the court implicitly overruled United States v. Gunter, 527 F.2d 282 (3d Cir. 2008)("Gunter II"), which relied on Ricks. The court ultimately vacated Russell's sentence and remanded for resentencing so that the sentencing court could impose a sentence in light of its "clarified authority " under Kimbrough and Spears.


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017),, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively d…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…