Kimbrough v. United States

552 U.S. 661

Case Year: 2007

Case Ruling: 7-2, Reversed and Remanded

Opinion Justice: Ginsburg

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Kennedy, Roberts, Scalia, Souter, Stevens


1st Concurring Opinion

Author: Scalia


1st Dissenting Opinion

Author: Alito


2nd Concurring Opinion



2nd Dissenting Opinion

Author: Thomas


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


According to the 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. In September 2004 Derrick Kimbrough was charged with and pled guilty to a series of drug-related charges including conspiracy to distribute crack and possession of a firearm while drug-trafficking.

Using the sentencing guidelines, the district court calculated that Kimbrough's sentencing range was between nineteen and 22 and a half years. The court decided, however, that this range was longer than was needed to accomplish the purpose of the guidelines and sentenced Kimbrough to fifteen years in prison plus five years of supervised release. The court altered the sentence to reflect what it felt was a sentencing disparity between punishments for selling crack and punishments for selling powder cocaine.

The Fourth Circuit Court vacated the sentence, claiming that a punishment outside of the sentencing guidelines was "unreasonable" when it is based on a disagreement with the guidelines themselves.



This Court's remedial opinion in United States v. Booker [2005] instructed district courts to read the United States Sentencing Guidelines as "effectively advisory." In accord with 18 U.S.C. §3553(a), the Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence. Booker further instructed that "reasonableness" is the standard controlling appellate review of the sentences district courts impose. . . .

We granted certiorari to determine whether the crack/powder disparity adopted in the United States Sentencing Guidelines has been rendered "advisory" by our decision in Booker.

We begin with some background on the different treatment of crack and powder cocaine under the federal sentencing laws. Crack and powder cocaine are two forms of the same drug. Powder cocaine, or cocaine hydrochloride, is generally inhaled through the nose; it may also be mixed with water and injected. Crack cocaine, a type of cocaine base, is formed by dissolving powder cocaine and baking soda in boiling water. The resulting solid is divided into single-dose "rocks" that users smoke. The active ingredient in powder and crack cocaine is the same. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high.

Although chemically similar, crack and powder cocaine are handled very differently for sentencing purposes. The 100-to-1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs. This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack. The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986. . . .

Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern. Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular.

Based on these assumptions, the 1986 Act adopted a "100-to-1 ratio" that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. . .


While Congress was considering adoption of the 1986 Act, the Sentencing Commission was engaged in formulating the Sentencing Guidelines. In the main, the Commission developed Guidelines sentences using an empirical approach based on data about past sentencing practices, including 10,000 presentence investigation reports. . . .

The Commission did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses. Instead, it employed the 1986 Act's weight-driven scheme. The Guidelines use a drug quantity table based on drug type and weight to set base offense levels for drug trafficking offenses. In setting offense levels for crack and powder cocaine, the Commission, in line with the 1986 Act, adopted the 100-to-1 ratio. . . .

Although the Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100-to-1 ratio, the Commission concluded that the disparity "fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act." . . .

[Still], the Commission's most recent reports do not urge identical treatment of crack and powder cocaine. In the Commission's view, "some differential in the quantity-based penalties" for the two drugs is warranted because crack is more addictive than powder, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime. But the 100-to-1 crack/powder ratio, the Commission concluded, significantly overstates the differences between the two forms of the drug. Accordingly, the Commission recommended that the ratio be "substantially" reduced.

The Commission has several times sought to achieve a reduction in the crack/powder ratio. In 1995, it proposed amendments to the Guidelines that would have replaced the 100-to-1 ratio with a 1-to-1 ratio. Complementing that change, the Commission would have installed special enhancements for trafficking offenses involving weapons or bodily injury. Congress . . . rejected the amendments. Simultaneously, however, Congress directed the Commission to "propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines."

In response to this directive, the Commission issued reports in 1997 and 2002 recommending that Congress change the 100-to-1 ratio prescribed in the 1986 Act. The 1997 Report proposed a 5-to-1 ratio. The 2002 Report recommended lowering the ratio "at least" to 20 to 1. Neither proposal prompted congressional action. The Commission's most recent report, issued in 2007, again urged Congress to amend the 1986 Act to reduce the 100-to-1 ratio. This time, however, the Commission did not simply await congressional action. Instead, the Commission adopted an ameliorating change in the Guidelines. The alteration, which became effective on November 1, 2007, reduces the base offense level associated with each quantity of crack by two levels. This modest amendment yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. Describing the amendment as "only . . . a partial remedy" for the problems generated by the crack/powder disparity, the Commission noted that "[a]ny comprehensive solution requires appropriate legislative action by Congress." . . .

While rendering the Sentencing Guidelines advisory, we have nevertheless preserved a key role for the Sentencing Commission. . . . [D]istrict courts must treat the Guidelines as the "starting point and the initial benchmark." Congress established the Commission to formulate and constantly refine national sentencing standards. Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to "base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise."

We have accordingly recognized that, in the ordinary case, the Commission's recommendation of a sentencing range will "reflect a rough approximation of sentences that might achieve §3553(a)'s objectives." The sentencing judge, on the other hand, has "greater familiarity with . . . the individual case and the individual defendant before him than the Commission or the appeals court." He is therefore "in a superior position to find facts and judge their import under §3353(a)" in each particular case. . . . [A] district court's decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case "outside the 'heartland' to which the Commission intends individual Guidelines to apply." On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range "fails properly to reflect §3553(a) considerations" even in a mine-run case.

The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission's exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of "empirical data and national experience." Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses "greater than necessary" in light of the purposes of sentencing set forth in §3553(a). Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence "greater than necessary" to achieve §3553(a)'s purposes, even in a mine-run case. Taking account of the foregoing discussion in appraising the District Court's disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant [statutory] factors. First, the court considered "the nature and circumstances" of the crime, which was an unremarkable drug-trafficking offense. Second, the court considered Kimbrough's "history and characteristics." The court noted that Kimbrough had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment.

Furthermore, the court alluded to the Sentencing Commission's reports criticizing the 100-to-1 ratio, noting that the Commission "recognizes that crack cocaine has not caused the damage that the Justice Department alleges it has." Comparing the Guidelines range to the range that would have applied if Kimbrough had possessed an equal amount of powder, the court suggested that the 100-to-1 ratio itself created an unwarranted disparity within the meaning of §3553(a). Finally, the court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with §3553(a)'s overarching instruction to "impose a sentence sufficient, but not greater than necessary" to accomplish the sentencing goals advanced in §3553(a)(2). Concluding that "the crack cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this case," the District Court thus rested its sentence on the appropriate considerations and "committed no procedural error."

The ultimate question in Kimbrough's case is "whether the sentence was reasonable. . . . The sentence the District Court imposed on Kimbrough was 4.5 years below the bottom of the Guidelines range. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with §3553(a). Indeed, aside from its claim that the 100-to-1 ratio is mandatory, the Government did not attack the District Court's downward variance as unsupported by §3553(a). Giving due respect to the District Court's reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion. For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.


[The Court's opinion] means that the district court is free to make its own reasonable application of the §3553(a) factors, and to reject (after due consideration) the advice of the Guidelines. If there is any thumb on the scales; if the Guidelines mustbe followed even where the district court's application of the §3553(a) factors is entirely reasonable; then the "advisory" Guidelines would, over a large expanse of their application, entitle the defendant to a lesser sentence but for the presence of certain additional facts found by judge rather than jury. This, as we said in Booker, would violate the Sixth Amendment.


I continue to disagree with the remedy fashioned in United States v. Booker. The Court's post- Booker sentencing cases illustrate why the remedial majority in Booker was mistaken to craft a remedy far broader than necessary to correct constitutional error. The Court is now confronted with a host of questions about how to administer a sentencing scheme that has no basis in the statute. Because the Court's decisions in this area are necessarily grounded in policy considerations rather than law, I respectfully dissent.

In Booker, the Court held that the Federal Sentencing Guidelines violate the Sixth Amendment insofar as they permit a judge to make findings that raise a sentence beyond the level justified by the " 'facts reflected in the jury verdict or admitted by the defendant.' " (quoting Blakely v. Washington (2004)). In my view, this violation was more suitably remedied by requiring any such facts to be submitted to the jury. That approach would have been consistent with our longstanding presumption of the severability of unconstitutional applications of statutory provisions. And it would have achieved compliance with the Sixth Amendment while doing the least amount of violence to the mandatory sentencing regime that Congress enacted. The Court, however, chose a more sweeping remedy. Despite acknowledging that under the mandatory Guidelines not "every sentence gives rise to a Sixth Amendment violation," the Court rendered the Guidelines advisory in their entirety and mandated appellate review of all sentences for "reasonableness." Because the Court's "solution fail[ed] to tailor the remedy to the wrong," I dissented from the remedial opinion.

As a result of the Court's remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers. Last Term, in Rita v. United States (2007), the Court held that a Court of Appeals may treat sentences within the properly calculated Guidelines range as presumptively reasonable. Today, in Gall v. United States, the Court holds that a Court of Appeals may not require sentences that deviate substantially from the Guidelines range to be justified by extraordinary circumstances. And here the Court holds that sentencing courts are free to reject the Sentencing Guidelines' 100-to-1 crack-to-powder ratio.

These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law. Congress did not mandate a reasonableness standard of appellate review--that was a standard the remedial majority in Booker fashioned out of whole cloth. The Court must now give content to that standard, but in so doing it does not and cannot rely on any statutory language or congressional intent. We are asked here to determine whether, under the new advisory Guidelines regime, district courts may impose sentences based in part on their disagreement with a categorical policy judgment reflected in the Guidelines. But the Court's answer to that question necessarily derives from something other than the statutory language or congressional intent because Congress, by making the Guidelines mandatory, quite clearly intended to bind district courts to the Sentencing Commission's categorical policy judgments. By rejecting this statutory approach, the Booker remedial majority has left the Court with no law to apply and forced it to assume the legislative role of devising a new sentencing scheme.

Although I joined Justice Scalia's dissent in Rita accepting the Booker remedial opinion as a matter of "statutory stare decisis," I am now convinced that there is no principled way to apply the Booker remedy--certainly not one based on the statute. Accordingly, I think it best to apply the statute as written, including 18 U.S.C. §3553(b), which makes the Guidelines mandatory.


For the reasons explained in my dissent in Gall v. United States, I would hold that, under the remedial decision in United States v. Booker, a district judge is still required to give significant weight to the policy decisions embodied in the Guidelines. The Booker remedial decision, however, does not permit a court of appeals to treat the Guidelines' policy decisions as binding. I would not draw a distinction between the Guideline at issue here and other Guidelines. Accordingly, I would vacate the decision of the Court of Appeals and remand for reconsideration.