An Odd Argument in Claiborne

Reading the transcript of yesterday's oral argument before the Supreme Court in Claiborne v. United States (a case that has to do with a sentencing court's decision to depart significantly downard from the suggestions of the federal sentencing guidelines for an individual convicted of a crack cocaine offense), I was struck by the following exchange between Claiborne's attorney Michael Dwyer, Justice Ginsburg, and Chief Justice Roberts:

JUSTICE GINSUBRG: . . . Is a district judge free to say under advisory guidelines, I am going to ignore the difference [between powder and crack cocaine], I'm going to treat this defendant as though he possessed powdered cocaine [rather than crack]?

MR. DWYER: I think that the judge in the obligation of imposing an individual sentence must consider the advice of the guidelines but must also be free to shape and tailor that advice as the circumstances of that case require.

JUSTICE GINSBURG: Well, specifically, can you take into account, can he say I'm going to treat him as though he possessed powdered cocaine? Can he do that? Yes or no?

MR. DWYER: Yes.

JUSTICE GINSBURG: Even though we know that Congress didn't want that to happen?

MR. DWYER: Yes, because I think if the judge can elaborate reasons to justify that judgment in that case -

CHIEF JUSTICE ROBERTS: That's got nothing to do with that case. That's got something to do with a judgment apart from the particulars of the case about whether crack should be treated the same as powdered crack cocaine. It's got nothing to do with the individual case.

MR. DWYER: Well, I beg to differ, Chief Justice Roberts, because the differences were predicated on assumptions about the type of individuals who would engage in that. And the court in her experience could look at it and say you aren't the typical crack defendant, you are more like the people who come before me who are involved in powdered cocaine, or you don't possess the violence, the weaponry and the other things that justified Congress's decision to create disparate sentences for these two kinds of cocaine.

This argument would seem to blur the line between judicial discretion and judicial re-writing of the facts. Crack cocaine and power cocaine are not the same thing. It would be no more reasonable for a judge to sentence somebody for a crack offense "as though" they had possessed powder cocaine than it would be for the judge to do the reverse. Imagine, for example, if a judge used the crack sentencing guidelines to sentence a poor, homeless powder cocaine user because that person wasn't "the typical powder cocaine defendant" and should be sentenced "as though" they had used crack. That certainly seems like it would be an abuse of discretion, even after Booker. The flip side of the same argument, in my opinion, is no more palatable.

The Sentencing Law and Policy Blog has more background on Claiborne here.