Sunday, October 24, 2010

Case o' The Week: Goodwin Finds Gold in Corner of Seventh Circuit - Mitchell and Kimbrough Policy Variances

A district judge looks at a guideline range, and knows in his or her gut that it is unfair -- it is based on bad policy, and would create unwarranted disparities in sentencing. Can that judge vary from the guideline under Section 3553(a), after Kimbrough?

Yep, if the guideline in question is Career Offender. (And, we think, the same logic must apply to the "fast-track" guidelines for illegal reentry cases as well). United States v. Mitchell, 2010 WL 4105220 (9th Cir. Oct. 20, 2010), decision available here.

Players: Decision by Judge Goodwin (right).

Facts: Mitchell, a Career Offender, pleaded guilty to distributing over fifty grams of a mixture containing crack. Id. at *1. The district court varied downward 43 months from Career Offender, id., because of its disagreement with the crack/powder sentencing disparity. Id. at *3.

Issue(s): Mitchell “challenges . . . the district judge’s consideration of the crack/powder disparity in his sentence.” Id. at *1.

Held: “We . . . join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.” Id. at *1.

“Acceding to the [Supreme] Court’s confirmation of the advisory only use of the Sentencing Guidelines, the circuits that have recently addressed the crack/powder differential in sentencing a career offender have concluded that ‘district judges are at liberty to reject any Guideline on policy grounds – though they must act reasonably when using that power.’ United States v. Corner, 590 F.3d 411, 415 (7th Cir. 2010) (en banc) . . . . We agree with this analysis and now follow it in this circuit.” Id. at *4 (emphases in original) (footnote and citations omitted).

“Because the sentencing judge carefully considered and explained his downward adjustment of Mitchell’s imprisonment term to account for the crack/powder differential, even though Mitchell was a serial offender, the judge was entitled to disagree with the policy behind the advisory Sentencing Guideline and did not abuse his discretion in sentencing Mitchell.” Id. at *5.

Of Note: What, exactly, was Mitchell’s beef? It isn’t clear from the opinion. The original fight in the opening brief was over the judge’s failure to fully vary down to a 1:1 crack / powder ratio. See Appellant’s Opening Brief, 2009 WL 3760268. This argument obviously pre-dated the Fair Sentencing Act of 2010 (“F.S.A.”) – which changed the crack / powder ratio needed to trigger the mandatory minimums from 100-to-1 to 18-to-1. See general summary here.

Along the course of briefing the dispute veered into the power of the district court to vary from Career Offender based on a policy dispute with the crack laws: a happy diversion for defendants generally, though it didn’t do much for Mitchell himself.

How to Use: Those brainy folks at the San Diego FPD (and, in particular, AFPD Steve Hubachek) have seized on a broader impact of Mitchell: a sub-silencio rejection of a previous, unfortunate Ninth Circuit decision, United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009).

Gonzalez-Zotelo, the Ninth reversed a § 3553(a) variance by a district judge who rejected the government’s refusal to give fast-track to one illegal reentry defendant when it had given the deal to another, more-culpable defendant the same day. Id. at *738. See blog describing decision here. Judge Silverman wrote that Kimbrough didn’t permit § 3553(a) variances for policy disagreements with Section 1326 fast-track disparities. Id. at *740.

Zip forward a year to
Mitchell, and the Ninth now relies on the Seventh Circuit’s en banc decision in Corner to hold that a court can use Kimbrough for a § 3553(a) variance based on policy disagreements with the crack laws. 2010 WL 4105220 at *4.

The Seventh has since recognized that
Corner changes everything – it has just held that Corner overrules its own limitations on Kimbrough variances for fast-track disparities. United States v. Reyes-Hernandez, 2010 WL 3911336, *10-*13 (7th Cir. Oct. 7, 2010). And, the Ninth has just adopted Corner - ergo, the Ninth appears to have rejected its own regrettable Gonzalez-Zotelo decision.

Like the more-enlightened Seventh, the Ninth should now take
Gonzalez-Zotelo en banc and get rid of a decision that cannot be squared with Kimbrough and post-Booker sentencing.

For Further Reading: The Fair Sentencing Act of 2010 changed the crack/powder ratio for mandatory-minimums. The Sentencing Commission just adopted “emergency amendments” that affect the guidelines for these drugs. For a summary of this new amendment, see the Sentencing Resource Counsel brief here.

Image of the Honorable Alfred T. Goodwin from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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Anonymous texas adult drivers ed said...

need to change some policies and are to be considered must.

- Rathod Wilson

Monday, October 25, 2010 4:48:00 AM  

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