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Per Curiam reversal of the Eighth Circuit on Kimbrough grounds.

District Court had used a 20:1 crack-to-powder ratio (pre-amendments) to sentence a "mine-run" offender. Eighth Circuit said that the district courts may not categorically reject the guideline ratio. The Supreme Court reversed.

Court affirms that the cocaine guidelines are merely advisory and that it is NOT an abuse of discretion for a district court to find that the crack-powder disparity yields an excessive sentence in a MINE-RUN case. A district court may vary downward from the advisory sentencing range based solely on the view that the guideline ratio is at odds with Section 3553(a). A sentencing court need only find that the ratio creates unwarranted sentencing disparity. A categorical disagreement with the Guidelines and a variance from the guideline range is NOT suspect (at least for the crack guidelines).

Very helpful decision and can be applied in other contexts?career offender, child porn, etc. When a guideline is not the product of the Sentencing Commission?s characteristic institutional role, a mine-run-case variance from the guideline range is not suspect. This opinion brings into even brighter light the need to deconstruct the guidelines that are not based on empirical support, attack them, and argue that disagreement with these suspect guidelines is not untoward.

Spears calls into question the validity of this summer?s holding in United States v. Funk, 534 F.3d 522 (6th Cir. 2008). It does not sink Funk out-of-hand; however, it provides much ammunition to question the holding. It seems to be a matter of attacking a guideline in the correct manner?really demonstrating that it is not a product of the Commission?s characteristic institutional role. What we need to do is give sentencing courts reasons to support policy disagreements with the Guidelines. And you will find GREAT reasons and resources at fd.org. Check out the Sentencing Resources and all the deconstruction materials.

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