August 14, 2008--In United States v. Harris, Appeal No. 07-2195, the Seventh Circuit held that Kimbrough does not apply to defendants whose guideline rangers were determined by the Career Offender provision of the Sentencing Guidelines.  The relevant portion of the Opinion is as follows:

"Finally, we turn to Harris’s sentence. At our request, Harris submitted a supplemental memorandum on the viability of his sentence after Kimbrough v. United States, 128 S. Ct. 558 (2007), and United States v. Taylor, 520F.3d 746 (7th Cir. 2008), in which Harris argued that his sentence was invalid. The government claims that Harris waived any argument about the legitimacy of his sentence by failing to raise it in his appellate briefs or at oral argument. See Valentine v. City of Chicago, 452 F.3d 670, 680 n.1 (7th Cir. 2006); Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir. 2004). Initially objecting to a criminal sentence in a post-argument supplemental memorandum does seem like a waiver. See Valentine, 452 F.3d at 680 n.1. Nevertheless, because the issue was raised subsequent to oral argument at our request, and because this issue will likely impact future cases, we will address it on the merits.

In Kimbrough, the Supreme Court held that a district court may reasonably depart under 18 U.S.C. § 3553(a) from the 100-to-1 crack cocaine to powder cocaine ratio prescribed by § 2D1.1 of the United States Sentencing Guidelines. 128 S. Ct. at 575. In order to address “the recurring issue of the proper treatment of crack sentencing appeals that were pending when the Supreme Court decided Kimbrough,” in United States v. Taylor we outlined a new approach for defendants who had failed to object to a district court’s pre-Kimbrough sentence under the guidelines. See 520 F.3d at 746.

Although Harris was convicted for distributing crack cocaine, this case presents a different issue entirely. Harris was not sentenced under § 2D1.1 for the amount of crack 24 No. 07-2195 cocaine he distributed, but rather under § 4B1.1 as a career offender. Section 2D1.1 employs a drug-quantity table to provide an offense level that is based on the amount of drugs at issue. In contrast, § 4B1.1 correlates offense levels and sentencing ranges with the gravity of the crime by incorporating the statutory maximum sentence for the underlying offense. See U.S.S.G. § 4B1.1(B)(1)(A). For example, under § 4B1.1, a defendant is assigned an offense level of 37 if his crime carries a statutory maximum sentence of life. See id. Thus, § 4B1.1 does not inherently prescribe different punishments for crimes involving crack cocaine than it does for crimes involving powder cocaine. To the extent that a sentencing disparity might occur under § 4B1.1 based upon the type of cocaine involved, it does not result from the now-advisory drug quantity table, but is the product of a discrepancy created by statute. See, e.g., 21 U.S.C. § 841(b) (setting the same statutory minima and maxima for 5 kg of powder cocaine and 50 g of crack cocaine).

While the sentencing guidelines may be only advisory for district judges, congressional legislation is not. As the First Circuit has explained, “the decision in Kimbrough—though doubtless important in some cases—is only of academic interest [in a case arising under the career offender guideline].” United States v. Jimenez, 512 F.3d 1, 9 (1st Cir. 2007); see also United States v. Clay, 524 F.3d 877, 878-79 (8th Cir. 2008) (“Although the recent amendments to the sentencing guidelines lowered the offense levels associated with crack in the drug quantity table in U.S.S.G. § 2D1.1, they did not change the career offender provision in § 4B1.1 . . . .”); United States v. Crawford, 520 F.3d 1072, 1075 (9th Cir. 2008). But our No. 07-2195 25 discussion should not be read to suggest that § 4B1.1 is any less advisory for a district judge than the other sentencing guidelines. Cf. United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008) (upholding district court’s decision to depart from career-offender guideline); United States v. Sanchez, 517 F.3d 651, 663 (2d Cir. 2008) (“[W]hile the sentencing statute expressly directs the district court to ‘consider’ the ‘sentencing range established for . . . the applicable category of defendant as set forth in the guidelines’ . . . it does not instruct the court to impose such a sentence.” (quoting 18 U.S.C. § 3553(a)(4)(A))).

We follow our sister circuits and clarify: a sentence entered under the career offender guideline, § 4B1.1, raises no Kimbrough problem because to the extent it treats crack cocaine differently from powder cocaine, the disparity arises from a statute, not from the advisory guidelines. Therefore, the Kimbrough decision in no way affected Harris’s sentence, so we will affirm the sentence given by the district court. See United States v. White, 519 F.3d 342, 349 (7th Cir. 2008)."

To read the entire opinion, click HERE.--posted by Jonathan E. Hawley

July 18, 2008--In United States v. Chapman, Appeal No. 07-3637, the Seventh Circuit held that a district judge may consider 3553(a) factors when ruling on a Rule 35(b) motion.  This is the first case in the Seventh Circuit to address 3553(a) factors in the context of a Rule 35(b) motion, and it presents new opportunities for advocacy.  To read the complete opinion, click HERE.  To read an article discussing the case at length, as well as the interplay between 3553(a) factors and 3553(e) motions for a sentence below a statutory mandatory minimum, click HERE.--posted by Jonathan E. Hawley

July 3, 2008--In Easley v. Reuss, Appeal No. 06-1646, the Seventh Circuit today "provide[s] litigants with some guidance concerning the proper contents of petitions for rehearing and for rehearing en banc."  The court notes, "Panel rehearings are designed as a mechanism for the panel to correct its own errors in the reading of the factual record or the law, rehearings en banc are designed to address issues that affect the integrity of the circuit's case law (intra-circuit conflicts) and the development of the law (questions of exceptional importance).  Given the 'heavy burden' that en banc rehearings impose on an 'already overburdened court,' such proceedings are reserved for the truly exceptional cases." [citations omitted].  To read the entire opinion, click HERE. --posted by Jonathan E. Hawley

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Last modified: 07/03/08