## Facts

- Derrick Kimbrough, a former Marine with no prior felony convictions, was indicted on drug and firearm charges: conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crack cocaine; possession with intent to distribute powder cocaine; and possessing a firearm in furtherance of drug trafficking.
- The offenses carried a statutory minimum term of 15 years’ imprisonment and a statutory maximum of life.
- The advisory Sentencing Guidelines range was 228–270 months, driven largely by the crack quantity and the Guidelines’ 100-to-1 crack/powder ratio.
- The district court concluded that a within-Guidelines sentence would be greater than necessary under 18 U.S.C. § 3553(a), citing the crack/powder disparity and noting that a powder-only range would have been far lower.
- The court imposed 180 months’ imprisonment, essentially the statutory minimum.

## Issues

1. After Booker, may a sentencing court consider the 100-to-1 crack/powder ratio reflected in the Sentencing Guidelines when deciding whether a within-Guidelines sentence is greater than necessary under § 3553(a)?
2. May a sentencing court impose a below-Guidelines sentence in a crack cocaine case based on policy disagreement with the crack/powder disparity, so long as the sentence is reasonable and within statutory limits?

## Decision

- The Supreme Court reversed the Fourth Circuit and remanded.
- The Court held that the crack cocaine Guidelines, like all Guidelines, are advisory; a sentence outside the Guidelines range is not per se unreasonable merely because it rests on disagreement with the crack/powder disparity.
- A district court must calculate and consider the Guidelines range, but may conclude that a within-Guidelines sentence is greater than necessary under § 3553(a).
- In making that determination, the court may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses, including the Sentencing Commission’s criticism of the ratio.
- The district court’s 180-month sentence was within statutory bounds and adequately justified under § 3553(a), and therefore could be reasonable.

## Legal Principles

- Post-Booker, the Sentencing Guidelines are advisory; sentencing courts must consider the Guidelines range but are not bound to impose a within-Guidelines sentence.
- A district court may vary from the Guidelines based on a policy disagreement with a Guideline, including the crack/powder disparity.
- Appellate review applies a reasonableness standard; categorical rules treating certain policy-based variances as per se unreasonable are inconsistent with the advisory-Guidelines framework.
- When a Guideline does not reflect the Sentencing Commission’s empirical and expert approach, a court may treat it as less persuasive in applying § 3553(a)’s parsimony directive.

## Conclusion

The Court held that a sentencing judge may impose a below-Guidelines sentence in a crack cocaine case based on a policy disagreement with the 100-to-1 crack/powder ratio, provided the judge considers the Guidelines, explains the sentence under § 3553(a), and stays within statutory limits.


Kimbrough v. United States, 552 U.S. 85 (2007)