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The U.S. Supreme Court on Dec. 10 rendered the following decisions: • The judges ruled, 7-2, to allow judges to weigh the controversial disparity between Federal Sentencing Guidelines sentences for crack and powder cocaine offenses in giving defendants a below-guideline sentence. Kimbrough v. U.S., No. 06-6330. Derrick Kimbrough’s cocaine and firearms offenses exposed him to a minimum prison term of 19 years under the guidelines. But a Virginia federal judge sentenced him to 15 years. The 4th U.S. Circuit Court of Appeals vacated the sentence, finding that a sentence outside the guidelines was “per se unreasonable” because it was based on a disagreement with the crack/powder disparity, which can give crack defendants sentences three to six times longer than those of powder offenders. The justices reversed. Justice Ruth Bader Ginsburg, writing for the majority, said the government’s arguments had not persuaded the court to “hold the crack/powder ratio untouchable by sentencing courts.” Ginsburg said that in establishing the disparate sentences for crack and powder offenses, the U.S. Sentencing Commission did not use empirical evidence as it usually does. As a result, deviating from the guidelines is not an abuse of judicial discretion, she said. Chief Justice John G. Roberts Jr. and justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Stephen G. Breyer concurred. Justices Clarence Thomas and Samuel A. Alito Jr. dissented. • The judges ruled, 7-2, that judges may deviate from the Federal Sentencing Guidelines without having to demonstrate that “extraordinary circumstances” required sentencing outside the guidelines. Gall v. U.S., No. 06-7949. Stevens, writing for the majority, said judges must give “serious consideration” to deviations and must explain their reasoning. But he added that in doing so, judges need not even presume the guidelines are reasonable and instead “must make an individualized assessment based on the facts presented.” Brian Gall, a University of Iowa student, briefly helped sell the drug ecstasy. The guidelines would have called for a roughly three-year prison term, but an Iowa federal judge sentenced him to probation for three years, citing his rehabilitation and successful business as a contractor. The 8th Circuit reversed, finding that such a deviation had to be justified by “extraordinary circumstances.” Stevens’ opinion was joined by Roberts, Scalia, Kennedy, Souter, Ginsburg and Breyer. Thomas and Alito dissented. • The justices unanimously refused to broaden the impact of a law that adds extra prison time to the sentences of drug traffickers who use a gun in carrying out their crimes. Watson v. U.S., No. 06-571. The court said the tough anti-crime provision does not apply to traffickers who trade drugs for guns. The court overturned the gun-related conviction of Michael A. Watson of Ascension Parish, La., who told a man who turned out to be a government informant that he wanted a weapon for self-protection and was willing to trade illegal drugs for it. The issue in the case was whether receiving a gun in exchange for drugs constitutes “use” of the gun under federal law.

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