Tuesday, April 28, 2009

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.

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