There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine. (See our latest piece on this here.) In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases. In 2008, that was made retroactive, so prisoners could get resentenced. Dillon wanted to get resentenced. But he wanted more than the 2-level reduction. He wanted a departure from the Guidelines recommendation itself, as permitted by Booker. But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence. As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker. And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.
Writing for a 7-1 majority (Stevens dissented, and Alito recused himself), Justice Sotomayor said that Booker doesn’t apply here — the Guidelines are not advisory, and have to be applied as they were back in the bad old days.
This is just infuriating. The 100-1 disparity in sentencing for crack vs. powder cocaine is fundamentally unjust. One would think that the judiciary would just wipe it out as simply unconstitutional. But instead, we get the Supremes saying §3582(c)(2) — the whole point of which is lenity for those sentenced under the disparate Guidelines — doesn’t allow for any lenity beyond what the Guidelines themselves permit.
Sotomayor’s legal reasoning isn’t bad. It’s actually pretty good. But her result is appalling.