Kimbrough v. United States, No. 06–6330.

• Court: United States Supreme Court
• Writing for the Court: Justice GINSBURG delivered the opinion of the Court.
• Citation: 552 U.S. 85,21 Fla. L. Weekly Fed. S 22,169 L.Ed.2d 481,128 S.Ct. 558,2007 Daily Journal D.A.R. 18164,07 Cal. Daily Op. Serv. 14079,76 USLW 4023
• Parties: Derrick KIMBROUGH, Petitioner, v. UNITED STATES.
• Docket Number: No. 06–6330.
• Decision Date: 10 December 2007

07 Cal. Daily Op. Serv. 14,079
128 S.Ct. 558
169 L.Ed.2d 481
2007 Daily Journal D.A.R. 18,164
21 Fla. L. Weekly Fed. S 22
552 U.S. 85
76 USLW 4023

Derrick KIMBROUGH, Petitioner,
v.
UNITED STATES.

No. 06–6330.

Supreme Court of the United States

Argued Oct. 2, 2007.Decided Dec. 10, 2007.

Recognized as Unconstitutional

18 U.S.C.A. § 3553(b)(1)18 U.S.C.A. § 3742(e) [128 S.Ct. 559]

[552 U.S. 85]

Syllabus ^*

Under the statute criminalizing the manufacture and distribution of cocaine, 21 U.S.C. § 841, and the relevant Federal Sentencing Guidelines, a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. Petitioner Kimbrough pleaded guilty to four offenses: conspiracy to distribute crack and powder; possession with intent to distribute more than 50 grams of crack; possession with intent to distribute powder; and possession[128 S.Ct. 560] of a firearm in furtherance of a drug-trafficking offense. Under the relevant statutes, Kimbrough's plea subjected him to a minimum prison term of 15 years and a maximum of life. The applicable advisory Guidelines range was 228 to 270 months, or 19 to 22.5 years. The District Court found, however, that a sentence in this range would have been greater than necessary to accomplish the purposes of sentencing set forth in 18 U.S.C. § 3553(a). In making that determination, the court relied in part on its view that Kimbrough's case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.” The court noted that if Kimbrough had possessed only powder cocaine, his Guidelines range would have been far lower: 97 to 106 months. Concluding that the statutory minimum sentence was long enough to accomplish § 3553(a)'s objectives, the court sentenced Kimbrough to 15 years, or 180 months, in prison. The Fourth Circuit vacated the sentence, finding that a sentence outside the Guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses.

Held:

1. Under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, § 3553(a). In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder offenses. Pp. 566 – 575.

(a) Crack and powder cocaine have the same physiological and psychotropic effects, but are handled very differently for sentencing purposes.

[552 U.S. 86]

The relevant statutes and Guidelines employ a 100–to–1 ratio that yields sentences for crack offenses three to six times longer than those for offenses involving equal amounts of powder. Thus, a major supplier of powder may receive a shorter sentence than a low-level dealer who buys powder and converts it to crack. P. 566.

(1) The crack/powder disparity originated in the Anti–Drug Abuse Act of 1986 (1986 Act), which created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress apparently adopted the 100–to–1 ratio because it believed that crack, a relatively new drug in 1986, was significantly more dangerous than powder. Thus, the 1986 Act's five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, and its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder. In developing Guidelines sentences for cocaine offenses, the Sentencing Commission employed the statute's weight-driven scheme, rather than its usual empirical approach based on past sentencing practices. The statute itself specifies only two quantities of each drug, but the Guidelines used the 100–to–1 ratio to set sentences for a full range of drug quantities. Pp. 566 – 568.

(2) Based on additional research and experience with the 100–to–1 ratio, the Commission later determined that the crack/powder differential does not meet the objectives of the Sentencing Reform Act and the 1986 Act. The Commission also found the disparity inconsistent with [128 S.Ct. 561] the 1986 Act's goal of punishing major drug traffickers more severely than low-level dealers, and furthermore observed that the differential fosters a lack of confidence in the criminal justice system because of a perception that it promotes an unwarranted divergence based on race. Pp. 568 – 569.

(3) The Commission has several times sought to achieve a reduction in the crack/powder ratio. Congress rejected a 1995 amendment to the Guidelines that would have replaced the 100–to–1 ratio with a 1–to–1 ratio, but directed the Commission to propose revision of the ratio under the relevant statutes and Guidelines. Congress took no action after the Commission's 1997 and 2002 reports recommended changing the ratio. The Commission's 2007 report again urged Congress to amend the 1986 Act, but the Commission also adopted an ameliorating change in the Guidelines. The modest amendment, which became effective on November 1, 2007, yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. The Commission thus noted that it is only a partial remedy to the problems generated by the crack/powder disparity. Pp. 569 – 570.

[552 U.S. 87]

(b) The federal sentencing statute, as modified by Booker, requires a court to give respectful consideration to the Guidelines, but “ permits the court to tailor the sentence in light of other [§ 3553(a) ] concerns as well,” 543 U.S., at 245–246, 125 S.Ct. 738. The Government contends that the Guidelines adopting the 100–to–1 ratio are an exception to this general freedom and offers three arguments in support of its position, each of which this Court rejects. Pp. 570 – 575.

(1) The Government argues that the 1986 Act itself prohibits the Commission and sentencing courts from disagreeing with the 100–to–1 ratio. This position lacks grounding in the statute, which, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack must be sentenced to a minimum of 5 years and a maximum of 40. A person with 50 grams or more of crack must be sentenced to a minimum of 10 years and a maximum of life. The statute says nothing about appropriate sentences within these brackets, and this Court declines to read any implicit directive into the congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708. Drawing meaning from silence is particularly inappropriate here, because Congress knows how to direct sentencing practices in express terms. See, e.g., 28 U.S.C. § 994(h). This cautious reading of the 1986 Act draws force from Neal v. United States, 516 U.S. 284, 116 S.Ct. 763, 133 L.Ed.2d 709, which involved different methods of calculating lysergic acid diethylamide (LSD) weights: The method applicable in determining statutory minimum sentences combined the weight of the pure drug and its carrier medium, while the one controlling the calculation of Guidelines ranges presumed a lower weight for the carrier medium. This Court rejected the argument that the Guidelines and the statute should be interpreted consistently, with the Guidelines' presumptive-weight method controlling the mandatory minimum calculation. Were the Government's current position correct, the Guidelines involved in Neal would be in serious jeopardy. The same reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100–to–1 ratio to all crack quantities could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium [128 S.Ct. 562] in calculating LSD weights. Yet Neal never questioned the Guidelines' validity, and in fact endorsed the Commission's freedom to adopt a new method. If the 1986 Act does not require the Commission to adhere to the Act's method for determining LSD weights, it does not require the Commission—or, after Booker, sentencing courts—to adhere to the 100–to–1 ratio for crack quantities other than those triggering the statutory mandatory minimum sentences. Pp. 570 – 572.

[552 U.S. 88]

(2) The Government also argues that Congress made clear, in disapproving the Commission's 1995 proposed Guidelines amendment, that the 1986 Act required the Commission and courts to respect the 100–to–1 ratio. But nothing in Congress' 1995 action suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress required the Commission to recommend a revision of the ratio. The Government argues that, by calling for recommendations to change both the statute and the Guidelines, Congress meant to bar any Guidelines alteration in advance of congressional action. But the more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission's criticisms of the 100–to–1 ratio concerned the exorbitance of the crack/powder disparity in both contexts. Moreover, as a result of the 2007 amendment, which Congress did not disapprove or modify, the Guidelines now deviate from the statute's 100–to–1 ratio, advancing a ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. Pp. 572 – 573.

(3) Finally, the Government argues that if district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio, “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), will ensue....