Crack Remand for Consideration of Kimbrough and Gall

United States v. Smith, No. 06-2815-cr (2d Cir. Jan. 24, 2008)

Smith was sentenced to 188 months imprisonment for various crack offenses.  Prior to sentencing, however, he had asked the court to take into account the disparities beween the Guidelines recommended sentences for crack and powder cocaine offenses, specifically asking the court to "thoughtfully and carefully sentence [Smith] under the powder cocaine guideline instead of the crack . . . base guideline."  The sentencing judge noted that he found it "inappropriate that the penalties are a hundred times more for crack than they are for powder," but rejected Smith's position because Congress had said to apply the law differently.

And then along came Kimbrough.  Smith, on appeal, maintained that remand is required  because the record indicates that the sentencing judge would have imposed a different sentence had it been empowered to do so.  And, surprisingly, the Government agreed, as did the Second Circuit.  It therefore remanded for resentencing in consideration of Kimbrough and Gall.