US v. Russell, No. 07-1790 affirms a sentencing after multiple Booker remands. This is a Cocaine base case. Although this is a pre-guidelines-modification sentence, “The [District] court ... concluded that it could take into account the proposed crack cocaine guideline amendments in considering the overall reasonableness of Russell's sentence.” This First holds that its decision in United States v. Pho, 433 F.3d 53 (2006) (our coverage here) remains vital after Kimbrough v. United States, 128 S. Ct. 558 (2007), even though the Supremes noted that Pho held that "sentencing court may not impose a sentence outside the Guidelines range based on its disagreement with the crack/powder disparity.” The First says that the Supreme Court is wrong, and United States v. Pho, 433 F.3d 53 (2006) is really just misunderstood. (My guess is they mean that this blog is written entirely by idiots. I doubt they think that the government would misunderstand anything.) Instead, the First says that:
We rejected in Pho the categorical substitution by the sentencing judge of a lower ratio – effectively, a constructive guideline sentencing range – for all crack cocaine offenders. However, we expressly preserved the discretion of the sentencing judge to consider the "nature of the contraband and/or the severity of a projected guideline sentence . . . on a case-by-case basis."
I put some more below the line.
Therefore, the First says that the Supremes were really agreeing with Pho. The reason, I think, for this confusion has been that post-Pho cases have treated the crack disparity as if it was non-negotiable under Booker, because the case prattles on and on about how it might be bad policy to have great racial disparity in these sentences, but there was nothing that could be done.
Whatever the case, the First plays lip-service to the parsimony principle.
After Kimbrough, it is clear that the undue harshness that may result from the 100:1 crack/powder ratio is properly considered as one of those factors woven into the tapestry as the district court considers what sentence is "sufficient, but not greater than necessary" in each individual case
But, since the District Court sentenced above what it has previously done, the First needs to do some clean-up, and says that there was no procedural error. Substantively, the First says that the District Court did a good enough job considering the 3553 factors.