Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

November 12, 2007

SUPREME COURT TO DECIDE THE 100:1 CRACK/POWDER COCAINE RATIO

Houston Criminal Attorney John T. Floyd Discusses the Inherent Tragedy Caused by the Crack/Powder Cocaine Ratio and the Unreasonably Long Prison Sentences for Low-Level, Non-Violent First Offenders.

Derrick Kimbrough was arrested in Norfolk, Virginia on two offenses involving of possession crack and powder cocaine as well as a single firearm offense. State authorities dismissed their case in favor of federal prosecution. The federal drug offenses exposed Kimbrough to a sentence range of 10 years to life imprisonment and a mandatory sentence range of 5 years to life imprisonment on the firearm offense to be served consecutively.

The Presentence Investigation Report (PSR), utilizing the U.S. Sentencing Guidelines, recommended a sentence range of 168 to 210 months. The sentence range would have been substantially lower had the drug offenses only involved powder cocaine.

Relying upon the Supreme Court rule announced in Booker v. United States, 543 U.S. 220 (2005) that the Guidelines are advisory only, the sentencing judge elected to follow the sentencing mandate of 18 U.S.C. § 3553(a) by considering Kimbrough’s minor criminal history, his military service, a steady employment history, and the “exaggerated” seriousness of the 100:1 crack/powder cocaine ratio to arrive at a 15-year sentence based upon application of the statutory minimums for each offense.

The Government appealed the sentence, challenging the sentencing judge’s policy disagreement with the 100:1 crack/powder cocaine ratio and his decision to impose a sentence outside the Guidelines range. See: United States v. Kimbrough, 174 Fed.Appx. 798, 2006 WL 1233525 (4th Cir. 2006). The Fourth Circuit, applying its per se “presumption of unreasonableness” announced in United States v. Eura, 440 F.3d 625 (4th Cir. 2006) to sentences outside the Guidelines based on a disagreement with the 100:1 ratio, reversed the 15-year sentence imposed on Kimbrough and remanded for resentencing consistent with the sentence range recommended by the Guidelines. Id.

Kimbrough sought, and secured, certiorari review of the Fourth Circuit’s decision on August 20, 2007. See: Kimbrough v. United States, ____ S.Ct. ______, 2007 WL 2349921 (U.S.). Kimbrough’s certiorari application presented the following two questions for review:

“(1) In carrying out the mandate of § 3553(a) to impose a sentence that is ‘sufficient but not greater than necessary,’ may a district court consider either the impact of the so-called ‘100:1 powder/crack weight ratio’ implemented in the U.S. Sentencing Guidelines or the reports and recommendations of the U.S. Sentencing Commission in 1995, 1997, and 2002 regarding the ratio?

“(2) In carrying out the mandate of § 3553(a) to impose a sentence that is ‘sufficient but not greater than necessary,’ how should a district court consider the factors articulated in the statute, and in particular, subsection (a)(6), which addresses ‘the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct’?”

See: Pratt, Frances H., Appellate Attorney, On Writ of Certiorari to the United States Court of Appeals For the Fourth Circuit, Brief for the Petitioner, 2007 WL 2220198 (July 24, 2007).

In 1986 Congress enacted the Anti-Drug Abuse Act, codified at 18 U.S.C. § 841. Congress intended for this Act to “give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources.” See: H.H. Rep. No. 99-845, pt. 1, at 11 (1986). The Act has not only failed to achieve that congressional intent but has saddled the nation’s federal judiciary with the unwelcome task of dealing with the blatant racism spawned by the Act.

This Act established what is known as the 100:1 ratio of powder cocaine to crack cocaine which treats one gram of crack cocaine as the equivalent of one hundred grams of powder cocaine. See: § 841(b)(1)(B). The Act also created a two-tier set of penalties: a ten-year mandatory minimum for “major traffickers” and a five-year minimum for “serious traffickers.” See: H.H. Rep. No. 99-845, pt. 1, at 16-18. A “major trafficker” was defined as an individual who operates a manufacturing or distribution network and a “serious trafficker” as someone who manages “retail level traffic” in substantial street quantities.” Id., at 11-12.

This congressional objective of having law enforcement target the most serious offenders motivated the creation of the 100:1 crack-powder ratio. There was an unfounded social and congressional perception, fueled by a law enforcement community eager for more police powers, that crack cocaine was more dangerous and produced more social harm than any other addictive drug, and “because crack is so potent, drug dealers need to carry much smaller quantities of crack than of cocaine powder” to satisfy the needs of its users. See: 132 Cong. Rec. S8091(daily ed. June 20, 1986)[statement of New York Senator Alphonse D’Amato]. See also: U.S. Sentencing Commission Special Report to Congress: Cocaine and Federal Sentencing Policy 118-19 (1995)[“the correlation between crack cocaine use and the commission of other serious crimes was considered greater than that with other drugs” when 1986 Act created]{hereinafter “1995 Report}.

Under the congressional mandate of this Act, the U.S. Sentencing Commission adopted Sentencing Guidelines that included the 100:1 ratio to create mandatory penalties in drug cases. These Guidelines became law in November 1987. See: U.S.S.G. § 2D1.1. They established base-offense levels for drug penalties that “are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute [i.e., the quantities tied to the mandatory minimums].” See: U.S. Sentencing Guidelines Manual, § 2D1.1 cmt. Background (1988). See also: Wilkins, William W., et al., Competing Sentencing Policies in a “War on Drugs” Era, 28 Wake Forest L. Rev. 305, 314 (1993); O’Dowd, Kyle, The Need to Reassess Quantity-Based Drug Sentences, 12 Fed. Sent’g. R. 116, 116 (1999)[Drug Guidelines “directly utilize and incorporate the drug quantity thresholds from the mandatory minimum statutes as anchors for drug sentencing calculations”].

Unquestionably, the U.S. Sentencing Commission, feeling the congressional pressure of the Act, felt it was “necessary to project the impact of this new law” by creating much harsher penalties for drug convictions than had previously been imposed by federal judges. See, U.S. Sentencing Comm’n, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements 58 (1987). Not only did the Commission increase drug penalties but it also increased penalties for white collar offenses, robbery, murder, aggravated assault, and rape to the extent that by 2002, federal inmates were incarcerated twice as long than they had been in 1984. See: U.S. Sentencing Comm’n, Fifteen Years of Guidelines Sentencing 47, 53-54, 64, 67, 139 (2004).

By early 1990s it had become evident that the penalties imposed under the 1986 Act inflicted a litany of disproportionate harm upon African-Americans than any other race. The 1995 Report (as revealed in the 1991 National Household Survey on Drug Abuse) found that 52% of reported crack users were Caucasian but only accounted for 10.3% of the federal convictions for simple possession of crack. Id., at 34, 152. While the 1995 Report found that African-Americans represented only 38% of the crack users, they nonetheless comprised 84% of the federal convictions for simple possession of crack. Id., at 152. The figures were even more disturbing in federal crack trafficking cases, the bulk of most federal drug convictions. 88.8% of the trafficking convictions were obtained against African-Americans while only 4.4% convictions were obtained against Caucasians. Id., at 152. See also: U.S. Sentencing Commission, 2003 Sourcebook of Federal Sentencing Statistics, Table 34 (2003).

The inherent tragedy in these statistics is that most involved low-level, non-violent offenses that resulted in long prison sentences for first offenders. DEA agent Joseph Rannazzisi, at a 2006 Public Hearing conducted by the U.S.S.C., testified that “crack cocaine operations” are generally “small-scale” and involved only “small number of ounces.” Id., at 40-41. Yet, historically, these low-level crack cocaine users have received sentences similar or higher than those imposed on high-level powder cocaine importers. The average sentence of the lowest-level crack cocaine offender was 104 months while the average sentence for the highest-level powder cocaine trafficker was 101 months. See: U.S. Sentencing Comm’n, Report to Congress: Cocaine and Federal Sentencing Policy 63 (2002)[hereinafter “2002 Report”].

Based on a gram-by-gram scale, low-level crack dealers are punished 300 times more harshly than high-level powder cocaine traffickers, and serve more time than any other drug offender in the federal prison system (an average of 120 months). See: Sterling, Eric E., Getting Justice Off Its Junk Food Diet, White Paper (July 17, 2006); U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics, Fig. L (2006).

In addition to these entrenched inequities in federal sentence policies, federal drug agents have instructed their low-level informant/users of powder cocaine to have their dealers convert the powder into crack in order to set up more serious prosecutions of these low-level drug dealers. See, e.g.: United States v. Fontes, 415 F.3d 174, 177-78 (1st Cir. 2005)[agent instructed informant to reject two ounces of powder cocaine and insist upon two ounces of crack cocaine]; United States v. Williams, 372 F.Supp.2d 1335, 1339 (M.D.Fla. 2005)[agents deliberately arranged sting purchase of crack cocaine to secure a higher base criminal offense level].

In 1994 Congress instructed the U.S. Sentencing Commission to “address the differences in penalty levels that apply to different forms of cocaine and include any recommendations that the Commission may have for retention or modification of such differences in penalty levels.” See: Violent Crime Control and Law Enforcement Act of 1994, Pub.L.No. 103-322, § 8000.1, § 280006, 108 Stat. 1796, 1985, 2097.

The Commission responded six months later with the conclusion that “the present 100-to-1 quantity ratio [between crack cocaine and powder cocaine] is too great.” See: 1995 Report, at i. The Commission added that “[a]mong other problems, the 100-to-1 ratio quantity ratio creates anomalous results by potentially punishing low-level (retail) crack dealers far more severely than their high-level (wholesale) suppliers of the powder cocaine that served as the product for conversion into crack.” Id. Finally, the Commission admitted that it had inserted the 100:1 ratio in its Guidelines on its own and not through any congressional direction, but now recommended that “[t]he guidelines should be refined to better address those harms that prompted Congress to establish the 100-to-1 quantity ratio.” Id.

The U.S. Sentencing Commission formally proposed an amendment to the Guidelines that would change the quantities of crack cocaine to match the quantities of powder cocaine. See: U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25,074, 25,075-77 (1995)[Amendment 5]. This proposed amendment was based on “consideration of the factors in the Special Report to Congress [1995 Report] and the purpose of sentencing set forth in 18 U.S.C. [§] 3553,” prompting the Commission to conclude that “the guideline provisions, as amended, will better take into account the increased harms associated with some crack cocaine offenses and, thus, the different offense levels based solely on the form of cocaine are not required.” 60 Fed. Reg. at 25,077.

18 U.S.C. § 3553(s) enumerates seven factors to be considered by a federal judge in sentencing criminal defendants. These factors are:

• Offense and offender characteristics.
• The need for a sentence to reflect the basis aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, and (d) rehabilitation.
• The sentences legally available.
• The Sentencing Guidelines.
• Sentencing Commission policy statements.
• The need to avoid unwarranted disparities.
• The need for restitution.
• Imposition of a sentence sufficient, but not greater than necessary, to comply with the basic sentencing objectives set out above.

Because federal judges had to interpret the sentencing Guidelines in drug cases as mandatory pursuant to the 1986 Act, § 3553(a) factors were relatively insignificant when considering a sentence governed by the 100-to-1 ratio. Federal judges began to not only question the statutory constraints of the “mandatory” drug Guidelines but the sentencing inequities they produced. See, e.g.: United States v. Moore, 54 F.3d 92, 102 (2d Cir. 1995)[crack disparity “raise[s] troublesome questions about the fairness of the crack cocaine sentencing policy”]; United States v. Singleterry, 29 F.3d 733, 741 (1st Cir. 1994)[“[a]lthough Singleterry has not established a constitutional violation, he has raised important questions about the efficacy and fairness of our current sentencing policies for offenses involving cocaine substances”]; United States v. Walls, 841 F. Supp. 24, 31 (D.D.C. 1994)[“{T}he disparity between the crack and powder penalties and the heavy impact of that disparity on black defendants is manifestly unfair.”], aff'd in part, 70 F.3d 1323 (D.C. Cir. 1995); United States v. Willis, 967 F.2d 1220, 1226 (8th Cir. 1992) (Heaney, J., concurring)[while affirming 15-year crack sentence, the suggestion made that Congress had no “sound basis to make the harsh distinction between powder and crack cocaine,” and quoting with approval district judge's description of the sentence as a “’tragedy’”]; United States v. Clary, 846 F. Supp. 768, 792 (E.D. Mo. 1994), rev'd, 34 F.3d 709 (8th Cir. 1994); United States v. Patillo, 817 F. Supp. 839, 843-44 & n.6 (C.D. Cal. 1993)

Despite these increasing judicial concerns and the recommendations of the Sentencing Commission, Congress bowed to the pressures from the U.S. Justice Department and used its authority pursuant to 18 U.S.C. § 994(p) to reject the Commission’s proposed amendment. See: Pub.L.No. 104-38, § 1, 109 Stat. 334 (1995). Although Congress did not instruct the Commission to abandon the 100:1 ratio in its Guidelines, it did encourage the Commission to submit proposals revising the ratio “in a manner consistent with the ratios set forth for other drugs and consistent with the objectives set forth” in § 3553(a). Id., Pub.L.No. 104-38 at § 2(a).

The Commission would try twice more in 1997 and 2002 to find a way to address Congress’ concerns, most of which were political and had very little to do with effective “law-and-order.” In support of the 1997 effort, 27 federal judges, all of whom had been U.S. Attorneys, addressed a letter to the U.S. Senate and House Judiciary Committees stating that “[i]t is our strongly held view that the current disparity between powder cocaine and crack cocaine, in … the guidelines can not be justified and results in sentences that are unjust and do not serve society’s interest.” See: Letter from John S. Martin, Jr. to Senator Orin Hatch, Chairman of the Senate Judiciary Committee, and Congressman Henry Hyde, Chairman of the House Judiciary Committee (Sept. 16, 1997), reprinted in 10 Fed.Sent’g Rep. 195 (1998).

In 2002 the Sentencing Commission utilized new information to evaluate the 100:1 ratio pursuant to the sentencing objectives of § 3553(a). This new information was an empirical study of federal cocaine offenses and offenders. Armed with this new research, the Commission unanimously concluded that the sentencing objectives of § 3553(a) would be served more effectively if Congress substantially decreased the 100:1 ratio. See: 2002 Report at 4. But Congress chose to maintain its politically safe “do-nothing” approach: it did not decrease the ratio nor did instruct the Commission to retain it.

This congressional attitude must be viewed against the reality that in 2000 only one in five crack cocaine defendants satisfied the 1986 Act criteria of being a “major” or “serious” trafficker. Id., 2002 Report at 39. That year approximately 73% of the convicted crack cocaine offenders were “street level” dealers or users while another 21% were “mid-level” importers, supplies or managers. Only 6% could be classified as the “highest-level” offenders. It had become abundantly clear that the original intentions of the 1986 Act were horribly flawed.

For example, the Commission reported that “More recent data indicate that significantly less trafficking related violence or systemic violence … is associated with crack cocaine trafficking offenses than previously assumed.” Id., 2002 Report at 100. The Commission added:

“[T]he harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine…. Powder cocaine that is smoked is equally addictive as crack cocaine, and powder cocaine that is injected is more harmful and more addictive than crack cocaine …. Recent research has demonstrated that some of the worst harms thought to be associated with crack cocaine use, such as disabilities associated with pre-natal cocaine exposure, are not as severe as initially feared and no more serious from crack cocaine exposure than from powder cocaine exposure.”
Id.

In the four reports it has submitted to Congress in the two decades since the enactment of the 1986 Act, the U.S. Sentencing Commission has made the following significant conclusions:

• Crack cocaine is not more “instantly” addictive than powder cocaine;
• Crack cocaine does not create a greater likelihood of violence than powder cocaine; and
• Crack cocaine use by pregnant mothers does not create greater potential for birth defects than powder cocaine.

See: 1995 Report at 184-87; United States Sentencing Comm'n, Report to the Congress: Cocaine and Federal Sentencing Policy 30, 67-69 (2007). See also: Haisukami, D.K. & Fischman, M.W., Crack Cocaine and Cocaine Hydrochloride, Are the Difference Myth or Reality?, 279 JAMA 1580 (1996)[psychological and psychoactive effects of crack/powder cocaine are similar]; Zuckerman, Barry, et al., Overview of the Effects of Abuse and Drugs on Pregnancy and Offspring, 149 Nat’l Inst. On Drug Abuse 16, 19 (1995).

But unquestionably it has been the racial impact on African-Americans which has drawn the greatest criticism of the 1986 Act’s 100:1 ratio. From the very beginning a disproportionate number of African-Americans were incarcerated under the law. “In 2002, 81 percent of the offenders sentenced for trafficking the crack form of cocaine were African American,” reported the U.S. Sentencing Commission. See: 2002 Report at 131. The NAACP Defense Fund has informed the Supreme Court that these disparities have imposed devastating consequences on the African-American community. The Defense Fund identified the consequences as follows:

• Dilution of Voting Rights. Forty-six states and the District of Columbia deny incarcerated prisoners the right to vote. See Human Rights Watch and The Sentencing Project; Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States § II (1998) … In thirty-two states, convicted offenders may not vote while they are on parole, and twenty-nine of these states disenfranchise offenders on probation. Id. Only fifteen of these states disenfranchise all ex-felons, id., thus sentence length is the critical factor that determines how long an individual remains disenfranchised. The Guidelines' exponentially longer crack cocaine sentences therefore contribute to the diminution of African American voting power by exacerbating the problem of African American felon disfranchisement.

• Impaired Capacity for Re-Entry. Longer sentences also undermine even first-time offenders' capacity for successful community reintegration. Because, for example, prolonged incarceration frequently causes attenuated family and community relationships, the deterioration of a defendant's strong support network makes reintegration and reentry upon release more difficult. See James P. Lynch & William J. Sabol, Prisoner Reentry in Perspective, 3 Crime Pol'y Rep. 1, 17-19 (2001).

• Other Harms to the Community. The lengthy prison terms associated with crack cocaine offenses also reach beyond individual families and contribute to the breakdown of community social structures like churches and schools that face a shortage of male *8 leaders. See Steven Rickman, The Impact of the Prison System on the African Community, 34 How. L.J. 524, 526 (1991); Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. Gender Race & Just. 253, 259 (2002).

See: Shaw, Theodore M., Director-Counsel, Brief Amicus Curiae of the NAACP Legal Defense & Educational Fund, Kimbrough v. United States, 2007 WL 2155556 (U.S.).

In 2005 the United States Supreme Court – perhaps in an effort to ease some of the social concerns associated with the 100:1 ratio - held that the “mandatory application” of the Guidelines violated the Sixth Amendment. See: Booker v. United States, 543 U.S. 220 (2005). Pointing out that the Guidelines are merely advisory, the Court held that § 3553(a) must be the cornerstone of every federal sentencing decision. Id., at 268-69. The Court observed that the Guidelines exist only as one of a number of factors a federal judge should consider when imposing a sentence pursuant to § 3553(a). Id.

However, rather than bring clarity to the federal sentencing process, Booker served only to add to the confusion borne of the original judicial mandate that the drug Guidelines were mandatory, and still were despite Booker. For example, the district court in United States v. Fisher held that the Guidelines range in a crack cocaine case “substantially overstate the seriousness of the offense” – and this conclusion came after an analysis of prior criticisms of the 100:1 ratio. See: 451 F.Supp.2d 553, 560-65 (S.D.N.Y. Oct. 11, 2005). See also: United States v. Perry, 389 F.Sup.2d 278, 307 (D.R.I. Sept. 16, 2005)[“growing sentiment in the district courts is clear” that the 100:1 ratio “cannot withstand … scrutiny” under § 3553(a)]. Accord: United States v. Clay, No. 2:03CR73, 2005 WL 1076243 (E.D. Tenn. May 6, 2005); United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073 (N.D. Ind. Feb. 3, 2005).

In an effort to curtail the 100:1 ratio “policy disagreements” emanating out of the district courts, the Fourth, Fifth, Sixth, Seventh, Eighth, Tenth and D.C. circuits adopted a “presumption of reasonableness” rule which effectively insulated all drug Guideline sentences from review. These circuits held that they would presume that the district court judges had considered all the relevant factors in sentencing, including those in § 3553(a) and the drug Guidelines, before imposing sentence and, therefore, the sentence would be presumed reasonable. See: United States v. Williams, 472 F.3d 835, 838 (11th Cir. 2006)[“a sentencing court is not only permitted but is required to evaluate the propriety of applying the 100:1 crack-cocaine ratio in a particular case”](Barkett, J., dissenting from denial of rehearing en banc); United States v. Eura, 440 F.3d 625, 637 (4th Cir.2006)[100:1 ratio “can help sentencing courts analyze the § 3553 factors … The Commission’s findings, in other words, can be considered insofar as they are refracted through an individual defendant’s case”](Michael, J. concurring).

In the wake of Booker and the “presumption of reasonableness” rule [a rule that embodies consideration of the antipodean mandates of the 100:1 ratio and the objectives of § 3553(a)], some judges simply did not know how to fashion an appropriate drug case sentence. For example, one judge on remand after being reversed by the Eleventh Circuit pondered:

“So what am I to do?… Am I to (somehow) ignore the widely held belief that the crack-powder disparity is inherently unjust; or may I subconsciously consider it in relationship to the offense conduct so long as it does not overwhelm my subjective judgment? … Should I … subvert my own sense of justice in order to purify my consideration of the statutory factors? Is that even humanly possible?”

See: United States v. Williams, 481 F. Supp. 2d 1298, 1302 (M.D. Fla. 2007). See also: United States v. Castillo, 2007 U.S. Dist. LEXIS 7422 (S.D.N.Y. Jan. 25, 2007)[district judge saying he could no longer consider the 100:1 ratio].

The Supreme Court in its last term once again waded into the murky federal sentencing waters by agreeing to decide whether the “presumption of reasonableness” rule was constitutional. See: Rita v. United States, 127 S.Ct. 2456 (2007). In upholding the “presumption” rule, the Court made two things quite clear: First, a defendant may “contest the Guidelines sentence … under § 3553(a)” and, second, the sentencing judge must weigh all of the § 3553(a) factors to arrive at the appropriate sentence. Id., 127 S.Ct. at 2463,

The Rita Court stressed that the U.S. Sentencing Commission had “tried to embody in the Guidelines the factors and considerations set froth in § 3553(a)” and that it did so by taking an “’empirical approach,’ beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interest of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” Id., at 2464. As a result of this “empirical approach,” the court found, the Commission had established Guidelines that “insofar as practicable, reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Id., at 2458.

The essence of the Rita decision is the significant clarification that a sentencing judge is now allowed to disagree with the sentence produced by the drug Guidelines, even when the differences are based on policy considerations. This Rita Court said that this disagreement can be resolved after the sentencing judge determines the advisory sentence by entertaining “arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply,” or “perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless.” Id., 127 S.Ct. at 2465.

The critical issue now before the Supreme Court in the Kimbrough case is that because the Guidelines are advisory, and not mandatory, there should be no “presumption of unreasonableness” when a sentencing judge imposes a below-Guidelines sentence after considering the § 3553(a) factors because the drug Guidelines sometimes produce an “unsound judgment,” or fail to treat certain defendant characteristics properly, or fail to meaningfully reflect § 3553(a) considerations. Id., 127 S.Ct. at 2465-68.

Finally, Rita certainly did not resolve all the § 3553(a)-related issues. In addition to Kimbrough, the Supreme Court this term will also decide whether a sentencing judge when considering the “reasonableness” of a sentence under Booker must justify his/her deviation from the Guidelines with a finding of extraordinary circumstances. See: Gall v. United States, 127 S.Ct. 2933 (2007). See also: Gall v. United States, 446 F.3d 884 (8th Cir. 2007).

SOURCES: Pratt, Frances H., Appellate Attorney, On Writ of Certiorari to the United States Court of Appeals For the Fourth Circuit, Brief for the Petitioner, 2007 WL 2220198 (US); Shaw, Theodore M., Director-Counsel, Brief Amicus Curiae of the NAACP Legal Defense & Educational Fund, 2007 WL 2155556 (U.S.); Shors, Matthew M., Brief of the Sentencing Project and the Center for the Study of Race and Law at the University of Virginia School of Law as Amici Curiae in Support of Petitioner, 2007 WL 2155555 (U.S.) – all filed before the United States Supreme Court in support of Kimbrough v. United States, ____ S.Ct. ______, 2007 WL 2349921 (U.S.)