US v. Pho, No. 05-2461, No. 05-2461. The First publishes its first cases of the new year today, and defendants, by Judge Selya, predictably, lose. See our earlier coverage here. The court provides an extensive discussion of Congress’ and the FSG’s decision to make crack punishable by a much harsher penalty prior to Booker. The government, if you will recall, argues that this isn’t a “reasonableness” appeal, but rather a straight “legal error” appeal, and therefore the District Court’s decision is reviewed de novo. Keep readin'
The court concludes:
Although the Court instructed that reasonableness review of the length of a sentence would be guided by the statutory sentencing factors, see Booker, 125 S. Ct. at 765-66, it provided no similar instruction as to how the reasonableness standard should be applied to claims — such as the one that the government presses here — that a sentencing court committed an error of law rather than an error of judgment. We agree with two of our sister circuits that, regardless of length, a sentence based on an error of law is per se unreasonable. * * * This holding recognizes that sentencing decisions must be done case by case and must be grounded in case-specific considerations, not in general disagreement with broad-based policies enunciated by Congress or the Commission, as its agent.
It also includes some platitudes about how Congress gets to determine
what people should be sentenced to, and really what is going on is the
application of statutes. Therefore, the kind of people who are likely
to use crack cocaine (rather than powder) and are the kind of people
who are likely to get caught would be well-advised to lobby their
Congressmen, as the kind of people that use powder are able to do. See SL&P here for more on this.
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