Second Circuit Indicates Belief that Kimbrough Does Not Apply to Statutory Mandatory Minimum Sentences

The defendant in United States v. Lee, 2008 WL 1745141 (2d Cir. April 17, 2008), raised the interesting issue, post-Kimbrough, that her 10-year sentence for crack distribution was unconstitutional in light of the disparity between the quantities of powder cocaine and crack cocaine necessary to trigger this mandatory minimum sentence.

Disposing of the case on the grounds that Lee had waived her right to appeal, the Court nonetheless noted that in United States v. Stevens, 19 F.3d 93 (2d Cir.1994), it had previously rejected Lee's equal-protection challenge to the powder cocaine-crack cocaine disparity embodied in mandatory minimum statutes.  See Stevens, 19 F.3d at 97 ("Because we believe that treatment of one gram of crack cocaine as the equivalent of 100 grams of powder cocaine is rationally related to the legitimate governmental purpose of protecting the public against the greater dangers of crack cocaine, we reject [the] equal protection challenge to this sentencing scheme").

The Court rejected Lee's argument that the legal landscape has changed since Stevens as a result of the Supreme Court's recent decision in Kimbrough v. United States, 128 S.Ct. 558, 564 (2007) that judges "may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses" when imposing sentence (the Court's emphasis).  The Second Circuit went on: "It is not apparent to us that the principles set forth in Kimbrough have any application to mandatory minimum sentences imposed by statute."

But 14 years after Stevens, and in light of the Sentencing Commission's conclusion, as quoted in Kimbrough, that the 100-1 disparity significantly overstates the differences between the two forms of the drug, it is hard to see how the Court can justify its statement in Stevens that the crack-cocaine disparity in mandatory minimums "is rationally related to [a] legitimate governmental purpose."

This blog has been on hiatus for a while, but expect several new entries soon!