Osler's Razor

As some of you know, I worked for a few years on a case called US v. Spears, in which a district court judge in Iowa departed from the federal sentencing guidelines' strict 100-1 ratio between powder and crack cocaine. I argued the case in the 8th Circuit, and seemed to have two of the three judges on the panel agreeing with me while the third (Judge Riley) clearly disagreed.

For months, we heard nothing on the case. Finally, instead of a panel opinion, we received an en banc opinion from the court as a whole ruling against us, with the Judges Bye and Lay in dissent! Clearly, Judge Riley had rallied the troops behind the scenes, and had gotten an en banc opinion without allowing the issue to be briefed or argued to the court as a whole.

So, with the help of Dustin Benham and Doug Roehrich, I sought certiorari from the Supreme Court. The Court, about this time, took the case of Kimbrough on the same issue. There, they agreed with the argument we had made in Spears (and in an amicus brief we filed in Kimbrough with the help of Matt Acosta), and held that the 100-1 ratio is not mandatory. They then granted our cert. petition in Spears, vacated the decision below, and remanded it to the 8th Circuit.

Now, the en banc 8th Circuit, in a 6-5 vote, has chosen to stick to their guns and again rejected the district court's opinion, despite the Supreme Court's opinion in Kimbrough. You can link to the opinion via Doug Berman here.

Grrrr.