12/10/07.06 6330.Kimbrough V. United States 6330 06

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(Slip Opinion)

OCTOBER TERM, 2007

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES
Syllabus

KIMBROUGH v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 06–6330. Argued October 2, 2007—Decided December 10, 2007
Under the statute criminalizing the manufacture and distribution of
cocaine, 21 U. S. C. §841, and the relevant Federal Sentencing Guide
lines, a drug trafficker dealing in crack cocaine is subject to the same
sentence as one dealing in 100 times more powder cocaine. Petitioner
Kimbrough pleaded guilty to four offenses: conspiracy to distribute
crack and powder; possession with intent to distribute more than 50
grams of crack; possession with intent to distribute powder; and pos
session of a firearm in furtherance of a drug-trafficking offense. Un
der the relevant statutes, Kimbrough’s plea subjected him to a mini
mum prison term of 15 years and a maximum of life. The applicable
advisory Guidelines range was 228 to 270 months, or 19 to 22.5
years. The District Court found, however, that a sentence in this
range would have been greater than necessary to accomplish the
purposes of sentencing set forth in 18 U. S. C. §3553(a). In making
that determination, the court relied in part on its view that
Kimbrough’s case exemplified the “disproportionate and unjust effect
that crack cocaine guidelines have in sentencing.” The court noted
that if Kimbrough had possessed only powder cocaine, his Guidelines
range would have been far lower: 97 to 106 months. Concluding that
the statutory minimum sentence was long enough to accomplish
§3553(a)’s objectives, the court sentenced Kimbrough to 15 years, or
180 months, in prison. The Fourth Circuit vacated the sentence,
finding that a sentence outside the Guidelines range is per se unrea
sonable when it is based on a disagreement with the sentencing dis
parity for crack and powder offenses.
Held:
1. Under United States v. Booker, 543 U. S. 220, the cocaine Guide
lines, like all other Guidelines, are advisory only, and the Fourth Cir

KIMBROUGH v. UNITED STATES
Syllabus
cuit erred in holding the crack/powder disparity effectively manda
tory. A district judge must include the Guidelines range in the array
of factors warranting consideration, but the judge may determine
that, in the particular case, a within-Guidelines sentence is “greater
than necessary” to serve the objectives of sentencing, §3553(a). In
making that determination, the judge may consider the disparity be
tween the Guidelines’ treatment of crack and powder offenses. Pp. 5–
21.
(a) Crack and powder cocaine have the same physiological and
psychotropic effects, but are handled very differently for sentencing
purposes. The relevant statutes and Guidelines employ a 100-to-1
ratio that yields sentences for crack offenses three to six times longer
than those for offenses involving equal amounts of powder. Thus, a
major supplier of powder may receive a shorter sentence than a lowlevel dealer who buys powder and converts it to crack. Pp. 5–11.
(1) The crack/powder disparity originated in the Anti-Drug
Abuse Act of 1986 (1986 Act), which created a two-tiered scheme of
five- and ten-year mandatory minimum sentences for drug manufac
turing and distribution offenses. Congress apparently adopted the
100-to-1 ratio because it believed that crack, a relatively new drug in
1986, was significantly more dangerous than powder. Thus, the 1986
Act’s five-year mandatory minimum applies to any defendant ac
countable for 5 grams of crack or 500 grams of powder, and its tenyear mandatory minimum applies to any defendant accountable for
50 grams of crack or 5,000 grams of powder. In developing Guide
lines sentences for cocaine offenses, the Sentencing Commission em
ployed the statute’s weight-driven scheme, rather than its usual em
pirical approach based on past sentencing practices. The statute
itself specifies only two quantities of each drug, but the Guidelines
used the 100-to-1 ratio to set sentences for a full range of drug quan
tities. Pp. 6–8.
(2) Based on additional research and experience with the 100
to-1 ratio, the Commission later determined that the crack/powder
differential does not meet the objectives of the Sentencing Reform Act
and the 1986 Act. The Commission also found the disparity inconsis
tent with the 1986 Act’s goal of punishing major drug traffickers
more severely than low-level dealers, and furthermore observed that
the differential fosters a lack of confidence in the criminal justice sys
tem because of a perception that it promotes an unwarranted diver
gence based on race. Pp. 8–10.
(3) The Commission has several times sought to achieve a re
duction in the crack/powder ratio. Congress rejected a 1995 amend
ment to the Guidelines that would have replaced the 100-to-1 ratio
with a 1-to-1 ratio, but directed the Commission to propose revision

Cite as: 552 U. S. ____ (2007)

Syllabus
of the ratio under the relevant statutes and Guidelines. Congress
took no action after the Commission’s 1997 and 2002 reports recom
mended changing the ratio. The Commission’s 2007 report again
urged Congress to amend the 1986 Act, but the Commission also
adopted an ameliorating change in the Guidelines. The modest
amendment, which became effective on November 1, 2007, yields sen
tences for crack offenses between two and five times longer than sen
tences for equal amounts of powder. The Commission thus noted
that it is only a partial remedy to the problems generated by the
crack/powder disparity. Pp. 10–11.
(b) The federal sentencing statute, as modified by Booker, re
quires a court to give respectful consideration to the Guidelines, but
“permits the court to tailor the sentence in light of other [§3553(a)]
concerns as well,” 543 U. S., at 245–246. The Government contends
that the Guidelines adopting the 100-to-1 ratio are an exception to
this general freedom and offers three arguments in support of its po
sition, each of which this Court rejects. Pp. 11–21.
(1) The Government argues that the 1986 Act itself prohibits
the Commission and sentencing courts from disagreeing with the
100-to-1 ratio. This position lacks grounding in the statute, which,
by its terms, mandates only maximum and minimum sentences: A
person convicted of possession with intent to distribute 5 grams or
more of crack must be sentenced to a minimum of 5 years and a
maximum of 40. A person with 50 grams or more of crack must be
sentenced to a minimum of 10 years and a maximum of life. The
statute says nothing about appropriate sentences within these brack
ets, and this Court declines to read any implicit directive into the
congressional silence. See Jama v. Immigration and Customs En
forcement, 543 U. S. 335, 341. Drawing meaning from silence is par
ticularly inappropriate here, because Congress knows how to direct
sentencing practices in express terms. See, e.g., 28 U. S. C. §994(h).
This cautious reading of the 1986 Act draws force from Neal v. United
States, 516 U. S. 284, which involved different methods of calculating
lysergic acid diethylamide (LSD) weights: The method applicable in
determining statutory minimum sentences combined the weight of
the pure drug and its carrier medium, while the one controlling the
calculation of Guidelines ranges presumed a lower weight for the car
rier medium. This Court rejected the argument that the Guidelines
and the statute should be interpreted consistently, with the Guide
lines’ presumptive-weight method controlling the mandatory mini
mum calculation. Were the Government’s current position correct,
the Guidelines involved in Neal would be in serious jeopardy. The
same reasons alleged to justify reading into the 1986 Act an implicit
command to the Commission and sentencing courts to apply the 100

KIMBROUGH v. UNITED STATES
Syllabus
to-1 ratio to all crack quantities could be urged in support of an ar
gument that the 1986 Act requires the Commission to include the full
weight of the carrier medium in calculating LSD weights. Yet Neal
never questioned the Guidelines’ validity, and in fact endorsed the
Commission’s freedom to adopt a new method. If the 1986 Act does
not require the Commission to adhere to the Act’s method for deter
mining LSD weights, it does not require the Commission—or, after
Booker, sentencing courts—to adhere to the 100-to-1 ratio for crack
quantities other than those triggering the statutory mandatory mini
mum sentences. Pp. 13–16.
(2) The Government also argues that Congress made clear, in
disapproving the Commission’s 1995 proposed Guidelines amend
ment, that the 1986 Act required the Commission and courts to re
spect the 100-to-1 ratio. But nothing in Congress’ 1995 action sug
gested that crack sentences must exceed powder sentences by a ratio
of 100 to 1. To the contrary, Congress required the Commission to
recommend a revision of the ratio. The Government argues that, by
calling for recommendations to change both the statute and the
Guidelines, Congress meant to bar any Guidelines alteration in ad
vance of congressional action. But the more likely reading is that
Congress sought proposals to amend both the statute and the Guide
lines because the Commission’s criticisms of the 100-to-1 ratio con
cerned the exorbitance of the crack/powder disparity in both contexts.
Moreover, as a result of the 2007 amendment, which Congress did
not disapprove or modify, the Guidelines now deviate from the stat
ute’s 100-to-1 ratio, advancing a ratio that varies (at different offense
levels) between 25 to 1 and 80 to 1. Pp. 16–18.
(3) Finally, the Government argues that if district courts are
free to deviate from the Guidelines based on disagreements with the
crack/powder ratio, “unwarranted sentence disparities,” 18 U. S. C.
§3553(a)(6), will ensue. The Government claims that, because sen
tencing courts remain bound by the 1986 Act’s mandatory minimum
sentences, deviations from the 100-to-1 ratio could result in sentenc
ing “cliffs” around quantities triggering the mandatory minimums.
For example, a district court could grant a sizable downward vari
ance to a defendant convicted of distributing 49 grams of crack, but
would be required by the statutory minimum to impose a much
higher sentence for only 1 additional gram. The LSD Guidelines ap
proved in Neal, however, create a similar risk of sentencing “cliffs.”
The Government also maintains that, if district courts are permitted
to vary from the Guidelines based on their disagreement with the
crack/powder disparity, defendants will receive markedly different
sentences depending on the particular judge drawn for sentencing.
While uniformity remains an important sentencing goal, Booker rec

Cite as: 552 U. S. ____ (2007)

Syllabus
ognized that some departures from uniformity were a necessary cost
of the remedy that decision adopted. And as to crack sentences in
particular, possible variations among district courts are constrained
by the 1986 Act’s mandatory minimums. Moreover, to the extent
that the Government correctly identifies risks of “unwarranted sen
tence disparities” within the meaning of §3353(a)(6), the proper solu
tion is for district courts to take account of sentencing practices in
other courts and the “cliffs” resulting from the statutory mandatory
minimum sentences and weigh these disparities against the other
§3553(a) factors and any unwarranted disparities created by the
crack/powder ratio itself. Pp. 18–20.
(c) Booker rendered the Sentencing Guidelines advisory, 543
U. S., at 245, but preserved a key role for the Sentencing Commis
sion. In the ordinary case, the Commission’s recommendation of a
sentencing range will “reflect a rough approximation of sentences
that might achieve §3553(a)’s objectives.” Rita v. United States, 551
U. S. ___, ___ (slip op., at 11). The sentencing judge, on the other
hand, is “in a superior position to find facts and judge their import
under §3553(a) in each particular case.” Gall v. United States, ante,
at 13 (internal quotation marks omitted). In light of these discrete
institutional strengths, a district court’s decision to vary from the ad
visory Guidelines may attract greatest respect when the sentencing
judge finds a particular case “outside the ‘heartland’ to which the
Commission intends individual Guidelines to apply.” Rita, 551 U. S.,
at ___ (slip op., at 12). On the other hand, while the Guidelines are
no longer binding, closer review may be in order when the sentencing
judge varies from the Guidelines based solely on the judge’s view that
the Guidelines range “fails properly to reflect §3553(a) considera
tions” even in a mine-run case. Ibid. The crack cocaine Guidelines,
however, present no occasion for elaborative discussion of this matter
because those Guidelines do not exemplify the Commission’s exercise
of its characteristic institutional role. Given the Commission’s depar
ture from its empirical approach in formulating the crack Guidelines
and its subsequent criticism of the crack/powder disparity, it would
not be an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder disparity
yields a sentence “greater than necessary” to achieve §3553(a)’s pur
poses, even in a mine-run case. Pp. 20–21.
2. The 180-month sentence imposed on Kimbrough should survive
appellate inspection. The District Court began by properly calculat
ing and considering the advisory Guidelines range. It then addressed
the relevant §3553(a) factors, including the Sentencing Commission’s
reports criticizing the 100-to-1 ratio. Finally, the court did not pur
port to establish a ratio of its own, but appropriately framed its final

KIMBROUGH v. UNITED STATES
Syllabus
determination in line with §3553(a)’s overarching instruction to “im
pose a sentence sufficient, but not greater than necessary” to accom
plish the sentencing goals advanced in §3553(a)(2). The court thus
rested its sentence on the appropriate considerations and “committed
no procedural error,” Gall, ante, at 17. Kimbrough’s sentence was 4.5
years below the bottom of the Guidelines range. But in determining
that 15 years was the appropriate prison term, the District Court
properly homed in on the particular circumstances of Kimbrough’s
case and accorded weight to the Sentencing Commission’s consistent
and emphatic position that the crack/powder disparity is at odds with
§3553(a). Giving due respect to the District Court’s reasoned ap
praisal, a reviewing court could not rationally conclude that the 4.5
year sentence reduction Kimbrough received qualified as an abuse of
discretion. Pp. 21–23.
174 Fed. Appx. 798, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, SOUTER, and BREYER, JJ., joined.
SCALIA, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed
dissenting opinions.

Cite as: 552 U. S. ____ (2007)

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–6330
_________________

DERRICK KIMBROUGH, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[December 10, 2007]

JUSTICE GINSBURG delivered the opinion of the Court.
This Court’s remedial opinion in United States v.
Booker, 543 U. S. 220, 244 (2005), instructed district
courts to read the United States Sentencing Guidelines as
“effectively advisory,” id., at 245. In accord with 18
U. S. C. §3553(a), the Guidelines, formerly mandatory,
now serve as one factor among several courts must con
sider in determining an appropriate sentence. Booker
further instructed that “reasonableness” is the standard
controlling appellate review of the sentences district
courts impose.
Under the statute criminalizing the manufacture and
distribution of crack cocaine, 21 U. S. C. §841, and the
relevant Guidelines prescription, §2D1.1, a drug trafficker
dealing in crack cocaine is subject to the same sentence as
one dealing in 100 times more powder cocaine. The ques
tion here presented is whether, as the Court of Appeals
held in this case, “a sentence . . . outside the guidelines
range is per se unreasonable when it is based on a dis
agreement with the sentencing disparity for crack and
powder cocaine offenses.” 174 Fed. Appx. 798, 799 (CA4

KIMBROUGH v. UNITED STATES
Opinion of the Court

2006) (per curiam). We hold that, under Booker, the co
caine Guidelines, like all other Guidelines, are advisory
only, and that the Court of Appeals erred in holding the
crack/powder disparity effectively mandatory. A district
judge must include the Guidelines range in the array of
factors warranting consideration. The judge may deter
mine, however, that, in the particular case, a withinGuidelines sentence is “greater than necessary” to serve
the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed.
and Supp. V). In making that determination, the judge
may consider the disparity between the Guidelines’ treat
ment of crack and powder cocaine offenses.
I
In September 2004, petitioner Derrick Kimbrough was
indicted in the United States District Court for the East
ern District of Virginia and charged with four offenses:
conspiracy to distribute crack and powder cocaine; posses
sion with intent to distribute more than 50 grams of crack
cocaine; possession with intent to distribute powder co
caine; and possession of a firearm in furtherance of a drugtrafficking offense. Kimbrough pleaded guilty to all four
charges.
Under the relevant statutes, Kimbrough’s plea subjected
him to an aggregate sentence of 15 years to life in prison:
10 years to life for the three drug offenses, plus a consecu
tive term of 5 years to life for the firearm offense.1 In
——————
1 The statutory range for possession with intent to distribute more
than 50 grams of crack is ten years to life.
See 21 U. S. C.
§841(b)(1)(A)(iii) (2000 ed. and Supp. V). The same range applies to the
conspiracy offense. See §846 (2000 ed.). The statutory range for
possession with intent to distribute powder cocaine is 0 to 20 years.
See §841(b)(1)(C) (Supp. V). Finally, the statutory range for possession
of a firearm in furtherance of a drug-trafficking offense is five years to
life. See 18 U. S. C. §924(c)(1)(A)(i). The sentences for the three drug
crimes may run concurrently, see §3584(a), but the sentence for the
firearm offense must be consecutive, see §924(c)(1)(A).

Cite as: 552 U. S. ____ (2007)

Opinion of the Court

order to determine the appropriate sentence within this
statutory range, the District Court first calculated
Kimbrough’s sentence under the advisory Sentencing
Guidelines.2 Kimbrough’s guilty plea acknowledged that
he was accountable for 56 grams of crack cocaine and 92.1
grams of powder cocaine. This quantity of drugs yielded a
base offense level of 32 for the three drug charges. See
United States Sentencing Commission, Guidelines Manual
§2D1.1(c) (Nov. 2004) (USSG). Finding that Kimbrough,
by asserting sole culpability for the crime, had testified
falsely at his codefendant’s trial, the District Court in
creased his offense level to 34. See §3C1.1. In accord with
the presentence report, the court determined that
Kimbrough’s criminal history category was II. An offense
level of 34 and a criminal history category of II yielded a
Guidelines range of 168 to 210 months for the three drug
charges. See id., ch. 5, pt. A, Sentencing Table. The
Guidelines sentence for the firearm offense was the statu
tory minimum, 60 months.
See USSG §2K2.4(b).
Kimbrough’s final advisory Guidelines range was thus 228
to 270 months, or 19 to 22.5 years.
A sentence in this range, in the District Court’s judg
ment, would have been “greater than necessary” to accom
plish the purposes of sentencing set forth in 18 U. S. C.
§3553(a). App. 72. As required by §3553(a), the court took
into account the “nature and circumstances” of the offense
and Kimbrough’s “history and characteristics.” Id., at 72–
73. The court also commented that the case exemplified
the “disproportionate and unjust effect that crack cocaine
guidelines have in sentencing.” Id., at 72. In this regard,
the court contrasted Kimbrough’s Guidelines range of 228
——————
2 Kimbrough

was sentenced in April 2005, three months after our
decision in Booker v. United States, 543 U. S. 220 (2005), rendered the
Guidelines advisory. The District Court employed the version of the
Guidelines effective November 1, 2004.

KIMBROUGH v. UNITED STATES
Opinion of the Court

to 270 months with the range that would have applied had
he been accountable for an equivalent amount of powder
cocaine: 97 to 106 months, inclusive of the 5-year manda
tory minimum for the firearm charge, see USSG §2D1.1(c);
id., ch. 5, pt. A, Sentencing Table. Concluding that the
statutory minimum sentence was “clearly long enough” to
accomplish the objectives listed in §3553(a), the court
sentenced Kimbrough to 15 years, or 180 months, in
prison plus 5 years of supervised release. App. 74–75.3
In an unpublished per curiam opinion, the Fourth Cir
cuit vacated the sentence. Under Circuit precedent, the
Court of Appeals observed, a sentence “outside the guide
lines range is per se unreasonable when it is based on a
disagreement with the sentencing disparity for crack and
powder cocaine offenses.” 174 Fed. Appx., at 799 (citing
United States v. Eura, 440 F. 3d 625, 633–634 (CA4 2006)).
We granted certiorari, 551 U. S. ___ (2007), to determine
whether the crack/powder disparity adopted in the United
States Sentencing Guidelines has been rendered “advi
sory” by our decision in Booker.4
——————
3 The prison sentence consisted of 120 months on each of the three
drug counts, to be served concurrently, plus 60 months on the firearm
count, to be served consecutively.
4 This question has divided the Courts of Appeals. Compare United
States v. Pickett, 475 F. 3d 1347, 1355–1356 (CADC 2007) (District
Court erred when it concluded that it had no discretion to consider the
crack/powder disparity in imposing a sentence), and United States v.
Gunter, 462 F. 3d 237, 248–249 (CA3 2006) (same), with United States
v. Leatch, 482 F. 3d 790, 791 (CA5 2007) (per curiam) (sentencing court
may not impose a sentence outside the Guidelines range based on its
disagreement with the crack/powder disparity), United States v. John
son, 474 F. 3d 515, 522 (CA8 2007) (same), United States v. Castillo,
460 F. 3d 337, 361 (CA2 2006) (same), United States v. Williams, 456
F. 3d 1353, 1369 (CA11 2006) (same), United States v. Miller, 450 F. 3d
270, 275–276 (CA7 2006) (same), United States v. Eura, 440 F. 3d 625,
633–634 (CA4 2006) (same), and United States v. Pho, 433 F. 3d 53, 62–
63 (CA1 2006) (same).

Cite as: 552 U. S. ____ (2007)

Opinion of the Court

II
We begin with some background on the different treat
ment of crack and powder cocaine under the federal sen
tencing laws. Crack and powder cocaine are two forms of
the same drug. Powder cocaine, or cocaine hydrochloride,
is generally inhaled through the nose; it may also be
mixed with water and injected. See United States Sen
tencing Commission, Special Report to Congress: Cocaine
and Federal Sentencing Policy 5, 12 (Feb. 1995), available
at http://www.ussc.gov/crack/exec.htm (hereinafter 1995
Report). (All Internet materials as visited Dec. 7, 2007,
and included in Clerk of Court’s case file.) Crack cocaine,
a type of cocaine base, is formed by dissolving powder
cocaine and baking soda in boiling water. Id., at 14. The
resulting solid is divided into single-dose “rocks” that
users smoke. Ibid. The active ingredient in powder and
crack cocaine is the same. Id., at 9. The two forms of the
drug also have the same physiological and psychotropic
effects, but smoking crack cocaine allows the body to
absorb the drug much faster than inhaling powder co
caine, and thus produces a shorter, more intense high.
Id., at 15–19.5
Although chemically similar, crack and powder cocaine
are handled very differently for sentencing purposes.
The 100-to-1 ratio yields sentences for crack offenses
three to six times longer than those for powder offenses
involving equal amounts of drugs. See United States
Sentencing Commission, Report to Congress: Cocaine
and Federal Sentencing Policy iv (May 2002),
available
at
http://www.ussc.gov/r_congress/02crack/
2002crackrpt.pdf (hereinafter 2002 Report).6 This dispar
——————
5 Injecting

powder cocaine produces effects similar to smoking crack
cocaine, but very few powder users inject the drug. See 1995 Report 18.
6 As explained in Part II–C, infra, the Sentencing Commission
amended the Guidelines and reduced sentences for crack offenses

KIMBROUGH v. UNITED STATES
Opinion of the Court

ity means that a major supplier of powder cocaine may
receive a shorter sentence than a low-level dealer who
buys powder from the supplier but then converts it to
crack. See 1995 Report 193–194.
A
The crack/powder disparity originated in the Anti-Drug
Abuse Act of 1986 (1986 Act), 100 Stat. 3207. The 1986
Act created a two-tiered scheme of five- and ten-year
mandatory minimum sentences for drug manufacturing
and distribution offenses. Congress sought “to link the
ten-year mandatory minimum trafficking prison term to
major drug dealers and to link the five-year minimum
term to serious traffickers.” 1995 Report 119. The 1986
Act uses the weight of the drugs involved in the offense as
the sole proxy to identify “major” and “serious” dealers.
For example, any defendant responsible for 100 grams of
heroin is subject to the five-year mandatory minimum, see
21 U. S. C. §841(b)(1)(B)(i) (2000 ed. and Supp V), and any
defendant responsible for 1,000 grams of heroin is subject
to the ten-year mandatory minimum, see §841(b)(1)(A)(i).
Crack cocaine was a relatively new drug when the 1986
Act was signed into law, but it was already a matter of
great public concern: “Drug abuse in general, and crack
cocaine in particular, had become in public opinion and in
members’ minds a problem of overwhelming dimensions.”
1995 Report 121. Congress apparently believed that crack
was significantly more dangerous than powder cocaine in
that: (1) crack was highly addictive; (2) crack users and
dealers were more likely to be violent than users and
dealers of other drugs; (3) crack was more harmful to
users than powder, particularly for children who had been
exposed by their mothers’ drug use during pregnancy; (4)
——————
effective November 1, 2007. Except as noted, this opinion refers to the
2004 Guidelines in effect at the time of Kimbrough’s sentencing.

Cite as: 552 U. S. ____ (2007)

Opinion of the Court

crack use was especially prevalent among teenagers; and
(5) crack’s potency and low cost were making it increas
ingly popular. See 2002 Report 90.
Based on these assumptions, the 1986 Act adopted a
“100-to-1 ratio” that treated every gram of crack cocaine as
the equivalent of 100 grams of powder cocaine. The Act’s
five-year mandatory minimum applies to any defendant
accountable for 5 grams of crack or 500 grams of powder,
21 U. S. C. §841(b)(1)(B)(ii), (iii); its ten-year mandatory
minimum applies to any defendant accountable for 50
grams of crack or 5,000 grams of powder, §841(b)(1)(A)(ii),
(iii).
While Congress was considering adoption of the 1986
Act, the Sentencing Commission was engaged in formulat
ing the Sentencing Guidelines.7 In the main, the Commis
sion developed Guidelines sentences using an empirical
approach based on data about past sentencing practices,
including 10,000 presentence investigation reports. See
USSG §1A.1, intro. comment., pt. A, ¶3. The Commission
“modif[ied] and adjust[ed] past practice in the interests of
greater rationality, avoiding inconsistency, complying with
congressional instructions, and the like.” Rita v. United
States, 551 U. S. ___, ___ (2007) (slip op., at 10).
The Commission did not use this empirical approach in
developing the Guidelines sentences for drug-trafficking
offenses. Instead, it employed the 1986 Act’s weightdriven scheme. The Guidelines use a drug quantity table
based on drug type and weight to set base offense levels
for drug trafficking offenses. See USSG §2D1.1(c). In
setting offense levels for crack and powder cocaine, the
Commission, in line with the 1986 Act, adopted the
——————
7 Congress created the Sentencing Commission and charged it with
promulgating the Guidelines in the Sentencing Reform Act of 1984, 98
Stat. 1987, 18 U. S. C. §3551 et seq. (2000 ed. and Supp. V), but the first
version of the Guidelines did not become operative until November
1987, see 1995 Report ii–iv.

KIMBROUGH v. UNITED STATES
Opinion of the Court

100-to-1 ratio. The statute itself specifies only two quanti
ties of each drug, but the Guidelines “go further and set
sentences for the full range of possible drug quantities
using the same 100-to-1 quantity ratio.” 1995 Report 1.
The Guidelines’ drug quantity table sets base offense
levels ranging from 12, for offenses involving less than 250
milligrams of crack (or 25 grams of powder), to 38, for
offenses involving more than 1.5 kilograms of crack (or
150 kilograms of powder). USSG §2D1.1(c).8
B
Although the Commission immediately used the
100-to-1 ratio to define base offense levels for all crack and
powder offenses, it later determined that the crack/powder
sentencing disparity is generally unwarranted. Based on
additional research and experience with the 100-to-1 ratio,
the Commission concluded that the disparity “fails to meet
the sentencing objectives set forth by Congress in both the
Sentencing Reform Act and the 1986 Act.” 2002 Re
port 91. In a series of reports, the Commission identified
three problems with the crack/powder disparity.
First, the Commission reported, the 100-to-1 ratio rested
on assumptions about “the relative harmfulness of the two
drugs and the relative prevalence of certain harmful con
duct associated with their use and distribution that more
recent research and data no longer support.” Ibid.; see
United States Sentencing Commission, Report to Con
gress: Cocaine and Federal Sentencing Policy 8 (May
2007),
available
at
http://www.ussc.gov/r_congress/
cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress
embedded in the statute far “overstate[s]” both “the rela
tive harmfulness” of crack cocaine, and the “seriousness of
——————
8 An

offense level of 12 results in a Guidelines range of 10 to 16
months for a first-time offender; an offense level of 38 results in a range
of 235 to 293 months for the same offender. See USSG ch. 5, pt. A,
Sentencing Table.

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Opinion of the Court

most crack cocaine offenses”). For example, the Commis
sion found that crack is associated with “significantly less
trafficking-related violence . . . than previously assumed.”
2002 Report 100. It also observed that “the negative
effects of prenatal crack cocaine exposure are identical to
the negative effects of prenatal powder cocaine exposure.”
Id., at 94. The Commission furthermore noted that “the
epidemic of crack cocaine use by youth never materialized
to the extent feared.” Id., at 96.
Second,
the
Commission
concluded
that
the
crack/powder disparity is inconsistent with the 1986 Act’s
goal of punishing major drug traffickers more severely
than low-level dealers. Drug importers and major traf
fickers generally deal in powder cocaine, which is then
converted into crack by street-level sellers. See 1995
Report 66–67. But the 100-to-1 ratio can lead to the
“anomalous” result that “retail crack dealers get longer
sentences than the wholesale drug distributors who supply
them the powder cocaine from which their crack is pro
duced.” Id., at 174.
Finally, the Commission stated that the crack/powder
sentencing differential “fosters disrespect for and lack of
confidence in the criminal justice system” because of a
“widely-held perception” that it “promotes unwarranted
disparity based on race.” 2002 Report 103. Approximately
85 percent of defendants convicted of crack offenses in
federal court are black; thus the severe sentences required
by the 100-to-1 ratio are imposed “primarily upon black
offenders.” Ibid.
Despite these observations, the Commission’s most
recent reports do not urge identical treatment of crack and
powder cocaine. In the Commission’s view, “some differ
ential in the quantity-based penalties” for the two drugs is
warranted, id., at 102, because crack is more addictive
than powder, crack offenses are more likely to involve
weapons or bodily injury, and crack distribution is associ

KIMBROUGH v. UNITED STATES
Opinion of the Court

ated with higher levels of crime, see id., at 93–94, 101–
102. But the 100-to-1 crack/powder ratio, the Commission
concluded, significantly overstates the differences between
the two forms of the drug. Accordingly, the Commission
recommended that the ratio be “substantially” reduced.
Id., at viii.
C
The Commission has several times sought to achieve a
reduction in the crack/powder ratio. In 1995, it proposed
amendments to the Guidelines that would have replaced
the 100-to-1 ratio with a 1-to-1 ratio. Complementing that
change, the Commission would have installed special
enhancements for trafficking offenses involving weapons
or bodily injury. See Amendments to the Sentencing
Guidelines for United States Courts, 60 Fed. Reg. 25075–
25077 (1995). Congress, acting pursuant to 28 U. S. C.
§994(p),9 rejected the amendments. See Pub. L. 104–38,
§1, 109 Stat. 334. Simultaneously, however, Congress
directed the Commission to “propose revision of the drug
quantity ratio of crack cocaine to powder cocaine under the
relevant statutes and guidelines.” §2(a)(2), id., at 335.
In response to this directive, the Commission issued
reports in 1997 and 2002 recommending that Congress
change the 100-to-1 ratio prescribed in the 1986 Act. The
1997 Report proposed a 5-to-1 ratio. See United States
Sentencing Commission, Special Report to Congress:
Cocaine and Federal Sentencing Policy 2 (Apr. 1997),
http://www.ussc.gov/r_congress/newcrack.pdf. The 2002
Report recommended lowering the ratio “at least” to 20 to
1. 2002 Report viii. Neither proposal prompted congres
sional action.
The Commission’s most recent report, issued in 2007,
——————
9 Subsection 994(p) requires the Commission to submit Guidelines
amendments to Congress and provides that such amendments become
effective unless “modified or disapproved by Act of Congress.”

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Opinion of the Court

again urged Congress to amend the 1986 Act to reduce the
100-to-1 ratio. This time, however, the Commission did
not simply await congressional action. Instead, the Com
mission adopted an ameliorating change in the Guidelines.
See 2007 Report 9. The alteration, which became effective
on November 1, 2007, reduces the base offense level asso
ciated with each quantity of crack by two levels. See
Amendments to the Sentencing Guidelines for United
States Courts, 72 Fed. Reg. 28571–28572 (2007).10 This
modest amendment yields sentences for crack offenses
between two and five times longer than sentences for
equal amounts of powder. See ibid.11 Describing the
amendment as “only . . . a partial remedy” for the prob
lems generated by the crack/powder disparity, the Com
mission noted that “[a]ny comprehensive solution requires
appropriate legislative action by Congress.” 2007 Re
port 10.
III
With this history of the crack/powder sentencing ratio in
mind, we next consider the status of the Guidelines tied to
the ratio after our decision in United States v. Booker, 543
U. S. 220 (2005). In Booker, the Court held that the man
——————
10 The amended Guidelines still produce sentencing ranges keyed to
the mandatory minimums in the 1986 Act. Under the pre-2007 Guide
lines, the 5- and 50-gram quantities that trigger the statutory mini
mums produced sentencing ranges that slightly exceeded those statu
tory minimums. Under the amended Guidelines, in contrast, the 5- and
50-gram quantities produce “base offense levels corresponding to
guideline ranges that include the statutory mandatory minimum
penalties.” 2007 Report 9.
11 The Commission has not yet determined whether the amendment
will be retroactive to cover defendants like Kimbrough. Even under the
amendment, however, Kimbrough’s Guidelines range would be 195 to
218 months—well above the 180-month sentence imposed by the
District Court. See Amendments to the Sentencing Guidelines for
United States Courts, 72 Fed. Reg. 28571–28572 (2007); USSG ch. 5,
pt. A, Sentencing Table.

KIMBROUGH v. UNITED STATES
Opinion of the Court

datory Sentencing Guidelines system violated the Sixth
Amendment. See id., at 226–227. The Booker remedial
opinion determined that the appropriate cure was to sever
and excise the provision of the statute that rendered the
Guidelines mandatory, 18 U. S. C. §3553(b)(1) (2000 ed.,
Supp. IV).12 This modification of the federal sentencing
statute, we explained, “makes the Guidelines effectively
advisory.” 543 U. S., at 245.
The statute, as modified by Booker, contains an overarching provision instructing district courts to “impose a
sentence sufficient, but not greater than necessary” to
accomplish the goals of sentencing, including “to reflect
the seriousness of the offense,” “to promote respect for the
law,” “to provide just punishment for the offense,” “to
afford adequate deterrence to criminal conduct,” and “to
protect the public from further crimes of the defendant.”
18 U. S. C. §3553(a) (2000 ed. and Supp. V). The statute
further provides that, in determining the appropriate
sentence, the court should consider a number of factors,
including “the nature and circumstances of the offense,”
“the history and characteristics of the defendant,” “the
sentencing range established” by the Guidelines, “any
pertinent policy statement” issued by the Sentencing
Commission pursuant to its statutory authority, and “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found
guilty of similar conduct.” Ibid. In sum, while the statute
still requires a court to give respectful consideration to the
Guidelines, see Gall v. United States, ante, at 7, 11, Booker
“permits the court to tailor the sentence in light of other
statutory concerns as well,” 543 U. S., at 245–246.
——————
12 The

remedial opinion also severed and excised the provision of the
statute requiring de novo review of departures from the Guidelines, 18
U. S. C. §3742(e), because that provision depended on the Guidelines’
mandatory status. Booker, 543 U. S., at 245.

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Opinion of the Court

The Government acknowledges that the Guidelines “are
now advisory” and that, as a general matter, “courts may
vary [from Guidelines ranges] based solely on policy con
siderations, including disagreements with the Guidelines.”
Brief for United States 16; cf. Rita v. United States, 551
U. S. ___, ___ (2007) (slip op., at 12) (a district court may
consider arguments that “the Guidelines sentence itself
fails properly to reflect §3553(a) considerations”). But the
Government contends that the Guidelines adopting the
100-to-1 ratio are an exception to the “general freedom
that sentencing courts have to apply the [§3553(a)] fac
tors.” Brief for United States 16. That is so, according to
the Government, because the ratio is a “specific policy
determinatio[n] that Congress has directed sentencing
courts to observe.” Id., at 25. The Government offers
three arguments in support of this position. We consider
each in turn.
A
As its first and most heavily pressed argument, the
Government urges that the 1986 Act itself prohibits the
Sentencing Commission and sentencing courts from dis
agreeing with the 100-to-1 ratio.13 The Government ac
knowledges that the “Congress did not expressly direct the
Sentencing Commission to incorporate the 100:1 ratio in
the Guidelines.” Brief for United States 33 (brackets and
internal quotation marks omitted). Nevertheless, it as
serts that the Act “[i]mplicit[ly]” requires the Commission
and sentencing courts to apply the 100-to-1 ratio. Id., at
32. Any deviation, the Government urges, would be “logi
——————
13 The Government concedes that a district court may vary from the
100-to-1 ratio if it does so “based on the individualized circumstance[s]”
of a particular case. Brief for United States 45. But the Government
maintains that the 100-to-1 ratio is binding in the sense that a court
may not give any weight to its own view that the ratio itself is inconsis
tent with the §3553(a) factors.

KIMBROUGH v. UNITED STATES
Opinion of the Court

cally incoherent” when combined with mandatory mini
mum sentences based on the 100-to-1 ratio. Id., at 33.
This argument encounters a formidable obstacle: It
lacks grounding in the text of the 1986 Act. The statute,
by its terms, mandates only maximum and minimum
sentences: A person convicted of possession with intent to
distribute 5 grams or more of crack cocaine must be sen
tenced to a minimum of 5 years and the maximum term is
40 years. A person with 50 grams or more of crack cocaine
must be sentenced to a minimum of 10 years and the
maximum term is life. The statute says nothing about the
appropriate sentences within these brackets, and we
decline to read any implicit directive into that congres
sional silence. See Jama v. Immigration and Customs
Enforcement, 543 U. S. 335, 341 (2005) (“We do not lightly
assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply . . . .”).
Drawing meaning from silence is particularly inappropri
ate here, for Congress has shown that it knows how to
direct sentencing practices in express terms. For example,
Congress has specifically required the Sentencing Com
mission to set Guidelines sentences for serious recidivist
offenders “at or near” the statutory maximum. 28 U. S. C.
§994(h). See also §994(i) (“The Commission shall assure
that the guidelines specify a sentence to a substantial term
of imprisonment” for specified categories of offenders.).
Our cautious reading of the 1986 Act draws force from
Neal v. United States, 516 U. S. 284 (1996). That case
involved different methods of calculating lysergic acid
diethylamide (LSD) weights, one applicable in determin
ing statutory minimum sentences, the other controlling
the calculation of Guidelines ranges. The 1986 Act sets
mandatory minimum sentences based on the weight of “a
mixture or substance containing a detectable amount” of
LSD. 21 U. S. C. §841(b)(1)(A)(v), (B)(v). Prior to Neal, we
had interpreted that language to include the weight of the

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Opinion of the Court

carrier medium (usually blotter paper) on which LSD is
absorbed even though the carrier is usually far heavier
than the LSD itself. See Chapman v. United States, 500
U. S. 453, 468 (1991). Until 1993, the Sentencing Com
mission had interpreted the relevant Guidelines in the
same way. That year, however, the Commission changed
its approach and “instructed courts to give each dose of
LSD on a carrier medium a constructive or presumed
weight of 0.4 milligrams.” Neal, 516 U. S., at 287 (citing
USSG §2D1.1(c), n. (H) (Nov. 1995)). The Commission’s
change significantly lowered the Guidelines range appli
cable to most LSD offenses, but defendants remained
subject to higher statutory minimum sentences based on
the combined weight of the pure drug and its carrier me
dium. The defendant in Neal argued that the revised
Guidelines and the statute should be interpreted consis
tently and that the “presumptive-weight method of the
Guidelines should also control the mandatory minimum
calculation.” 516 U. S., at 287. We rejected that argu
ment, emphasizing that the Commission had not pur
ported to interpret the statute and could not in any event
overrule our decision in Chapman. See 516 U. S., at 293–
295.
If the Government’s current position were correct, then
the Guidelines involved in Neal would be in serious jeop
ardy. We have just recounted the reasons alleged to
justify reading into the 1986 Act an implicit command to
the Commission and sentencing courts to apply the
100-to-1 ratio to all quantities of crack cocaine. Those
same reasons could be urged in support of an argument
that the 1986 Act requires the Commission to include the
full weight of the carrier medium in calculating the
weight of LSD for Guidelines purposes. Yet our opinion
in Neal never questioned the validity of the altered
Guidelines. To the contrary, we stated: “Entrusted within
its sphere to make policy judgments, the Commission may

KIMBROUGH v. UNITED STATES
Opinion of the Court

abandon its old methods in favor of what it has deemed a
more desirable ‘approach’ to calculating LSD quantities.”
Id., at 295.14 If the 1986 Act does not require the Commis
sion to adhere to the Act’s method for determining LSD
weights, it does not require the Commission—or, after
Booker, sentencing courts—to adhere to the 100-to-1 ratio
for crack cocaine quantities other than those that trigger
the statutory mandatory minimum sentences.
B
In addition to the 1986 Act, the Government relies on
Congress’ disapproval of the Guidelines amendment that
the Sentencing Commission proposed in 1995. Congress
“not only disapproved of the 1:1 ratio,” the Government
urges; it also made clear “that the 1986 Act required the
Commission (and sentencing courts) to take drug quanti
ties into account, and to do so in a manner that respects
the 100:1 ratio.” Brief for United States 35.
It is true that Congress rejected the Commission’s 1995
proposal to place a 1-to-1 ratio in the Guidelines, and that
Congress also expressed the view that “the sentence im
posed for trafficking in a quantity of crack cocaine should
——————
14 At oral argument, the Government sought to distinguish Neal v.
United States, 516 U. S. 284 (1996), on the ground that the validity of
the amended Guidelines was not before us in that case. See Tr. of Oral
Arg. 25. That is true, but only because the Government did not chal
lenge the amendment. In fact, the Government’s brief appeared to
acknowledge that the Commission may legitimately deviate from the
policies and methods embodied in the 1986 Act, even if the deviation
produces some inconsistency. See Brief for United States in Neal v.
United States, O. T. 1995, No. 94–9088, p. 26 (“When the Commission’s
views about sentencing policy depart from those of Congress, it may
become difficult to achieve entirely consistent sentencing, but that is a
matter for Congress, not the courts, to address.”). Moreover, our
opinion in Neal assumed that the amendment was a legitimate exercise
of the Commission’s authority. See 516 U. S., at 294 (noting with
apparent approval the Commission’s position that “the Guidelines
calculation is independent of the statutory calculation”).

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Opinion of the Court

generally exceed the sentence imposed for trafficking in a
like quantity of powder cocaine.”
Pub. L. 104–38,
§2(a)(1)(A), 109 Stat. 334. But nothing in Congress’ 1995
reaction to the Commission-proposed 1-to-1 ratio sug
gested that crack sentences must exceed powder sentences
by a ratio of 100 to 1. To the contrary, Congress’ 1995
action required the Commission to recommend a “revision
of the drug quantity ratio of crack cocaine to powder co
caine.” §2(a)(2), id., at 335.
The Government emphasizes that Congress required the
Commission to propose changes to the 100-to-1 ratio in
both the 1986 Act and the Guidelines. This requirement,
the Government contends, implicitly foreclosed any devia
tion from the 100-to-1 ratio in the Guidelines (or by sen
tencing courts) in the absence of a corresponding change
in the statute. See Brief for United States 35–36. But it
does not follow as the night follows the day that, by calling
for recommendations to change the statute, Congress
meant to bar any Guidelines alteration in advance of
congressional action. The more likely reading is that
Congress sought proposals to amend both the statute and
the Guidelines because the Commission’s criticisms of the
100-to-1 ratio, see Part II–B, supra, concerned the exorbi
tance of the crack/powder disparity in both contexts.
Moreover, as a result of the 2007 amendment, see supra,
at 10–11, the Guidelines now advance a crack/powder
ratio that varies (at different offense levels) between 25 to
1 and 80 to 1. See Amendments to the Sentencing Guide
lines for United States Courts, 72 Fed. Reg. 28571–28572.
Adopting the Government’s analysis, the amended Guide
lines would conflict with Congress’ 1995 action, and with
the 1986 Act, because the current Guidelines ratios devi
ate from the 100-to-1 statutory ratio. Congress, however,
did not disapprove or modify the Commission-initiated
2007 amendment. Ordinarily, we resist reading congres
sional intent into congressional inaction. See Bob Jones

KIMBROUGH v. UNITED STATES
Opinion of the Court

Univ. v. United States, 461 U. S. 574, 600 (1983). But in
this case, Congress failed to act on a proposed amendment
to the Guidelines in a high-profile area in which it had
previously exercised its disapproval authority under 28
U. S. C. §994(p). If nothing else, this tacit acceptance of
the 2007 amendment undermines the Government’s posi
tion, which is itself based on implications drawn from
congressional silence.
C
Finally, the Government argues that if district courts
are free to deviate from the Guidelines based on disagree
ments with the crack/powder ratio, unwarranted dispari
ties of two kinds will ensue. See 18 U. S. C. §3553(a)(6)
(sentencing courts shall consider “the need to avoid un
warranted sentence disparities”). First, because sentenc
ing courts remain bound by the mandatory minimum
sentences prescribed in the 1986 Act, deviations from the
100-to-1 ratio could result in sentencing “cliffs” around
quantities that trigger the mandatory minimums. Brief
for United States 33 (internal quotation marks omitted).
For example, a district court could grant a sizable down
ward variance to a defendant convicted of distributing 49
grams of crack but would be required by the statutory
minimum to impose a much higher sentence on a defen
dant responsible for only 1 additional gram. Second, the
Government maintains that, if district courts are permit
ted to vary from the Guidelines based on their disagree
ment with the crack/powder disparity, “defendants with
identical real conduct will receive markedly different
sentences, depending on nothing more than the particular
judge drawn for sentencing.” Id., at 40.
Neither of these arguments persuades us to hold the
crack/powder ratio untouchable by sentencing courts. As
to the first, the LSD Guidelines we approved in Neal
create a similar risk of sentencing “cliffs.” An offender

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Opinion of the Court

who possesses LSD on a carrier medium weighing ten
grams is subject to the ten-year mandatory minimum, see
21 U. S. C. §841(b)(1)(A)(v), but an offender whose carrier
medium weighs slightly less may receive a considerably
lower sentence based on the Guidelines’ presumptiveweight methodology. Concerning the second disparity, it
is unquestioned that uniformity remains an important
goal of sentencing. As we explained in Booker, however,
advisory Guidelines combined with appellate review for
reasonableness and ongoing revision of the Guidelines in
response to sentencing practices will help to “avoid exces
sive sentencing disparities.” 543 U. S., at 264. These
measures will not eliminate variations between district
courts, but our opinion in Booker recognized that some
departures from uniformity were a necessary cost of the
remedy we adopted. See id., at 263 (“We cannot and do
not claim that use of a ‘reasonableness’ standard will
provide the uniformity that Congress originally sought to
secure [through mandatory Guidelines].”). And as to crack
cocaine sentences in particular, we note a congressional
control on disparities: possible variations among district
courts are constrained by the mandatory minimums Con
gress prescribed in the 1986 Act.15
Moreover, to the extent that the Government correctly
identifies risks of “unwarranted sentence disparities”
within the meaning of 18 U. S. C. §3353(a)(6), the proper
solution is not to treat the crack/powder ratio as manda
tory. Section 3553(a)(6) directs district courts to consider
the need to avoid unwarranted disparities—along with
other §3553(a) factors—when imposing sentences. See
Gall, ante, at 11, n. 6, 16. Under this instruction, district
——————
15 The

Sentencing Commission reports that roughly 70% of crack
offenders are responsible for drug quantities that yield base offense
levels at or only two levels above those that correspond to the statutory
minimums. See 2007 Report 25.

KIMBROUGH v. UNITED STATES
Opinion of the Court

courts must take account of sentencing practices in other
courts and the “cliffs” resulting from the statutory manda
tory minimum sentences. To reach an appropriate sen
tence, these disparities must be weighed against the other
§3553(a) factors and any unwarranted disparity created by
the crack/powder ratio itself.
IV
While rendering the Sentencing Guidelines advisory,
United States v. Booker, 543 U. S. 220, 245 (2005), we
have nevertheless preserved a key role for the Sentencing
Commission. As explained in Rita and Gall, district
courts must treat the Guidelines as the “starting point and
the initial benchmark,” Gall v. United States, ante, at 11.
Congress established the Commission to formulate and
constantly refine national sentencing standards. See Rita
v. United States, 551 U. S. ___, ___–___ (2007) (slip op., at
9–11). Carrying out its charge, the Commission fills an
important institutional role: It has the capacity courts lack
to “base its determinations on empirical data and national
experience, guided by a professional staff with appropriate
expertise.” United States v. Pruitt, 502 F. 3d 1154, 1171
(CA10 2007) (McConnell, J., concurring); see supra, at 7.
We have accordingly recognized that, in the ordinary
case, the Commission’s recommendation of a sentencing
range will “reflect a rough approximation of sentences that
might achieve §3553(a)’s objectives.” Rita, 551 U. S., at
___ (slip op., at 11). The sentencing judge, on the other
hand, has “greater familiarity with . . . the individual case
and the individual defendant before him than the Com
mission or the appeals court.” Id., at ___ (slip op., at 18).
He is therefore “in a superior position to find facts and
judge their import under §3353(a)” in each particular case.
Gall, ante, at 13 (internal quotation marks omitted). In
light of these discrete institutional strengths, a district
court’s decision to vary from the advisory Guidelines may

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Opinion of the Court

attract greatest respect when the sentencing judge finds a
particular case “outside the ‘heartland’ to which the Com
mission intends individual Guidelines to apply.” Rita, 551
U. S., at ___ (slip op., at 12). On the other hand, while the
Guidelines are no longer binding, closer review may be in
order when the sentencing judge varies from the Guide
lines based solely on the judge’s view that the Guidelines
range “fails properly to reflect §3553(a) considerations”
even in a mine-run case. Ibid. Cf. Tr. of Oral Arg. in Gall
v. United States, O. T. 2007, No. 06-7949, pp. 38–39.
The crack cocaine Guidelines, however, present no
occasion for elaborative discussion of this matter because
those Guidelines do not exemplify the Commission’s exer
cise of its characteristic institutional role. In formulating
Guidelines ranges for crack cocaine offenses, as we earlier
noted, the Commission looked to the mandatory minimum
sentences set in the 1986 Act, and did not take account of
“empirical data and national experience.” See Pruitt, 502
F. 3d, at 1171 (McConnell, J., concurring). Indeed, the
Commission itself has reported that the crack/powder
disparity produces disproportionately harsh sanctions, i.e.,
sentences for crack cocaine offenses “greater than neces
sary” in light of the purposes of sentencing set forth in
§3553(a). See supra, at 8–9. Given all this, it would not
be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the
crack/powder disparity yields a sentence “greater than
necessary” to achieve §3553(a)’s purposes, even in a mine
run case.
V
Taking account of the foregoing discussion in appraising
the District Court’s disposition in this case, we conclude
that the 180-month sentence imposed on Kimbrough
should survive appellate inspection. The District Court
began by properly calculating and considering the advi

KIMBROUGH v. UNITED STATES
Opinion of the Court

sory Guidelines range. It then addressed the relevant
§3553(a) factors. First, the court considered “the nature
and circumstances” of the crime, see 18 U. S. C.
§3553(a)(1), which was an unremarkable drug-trafficking
offense. App. 72–73 (“[T]his defendant and another defen
dant were caught sitting in a car with some crack cocaine
and powder by two police officers—that’s the sum and
substance of it—[and they also had] a firearm.”). Second,
the court considered Kimbrough’s “history and character
istics.” §3553(a)(1). The court noted that Kimbrough had
no prior felony convictions, that he had served in combat
during Operation Desert Storm and received an honorable
discharge from the Marine Corps, and that he had a
steady history of employment.
Furthermore, the court alluded to the Sentencing Com
mission’s reports criticizing the 100-to-1 ratio, cf.
§3553(a)(5) (Supp. V), noting that the Commission “recog
nizes that crack cocaine has not caused the damage that
the Justice Department alleges it has.” App. 72. Compar
ing the Guidelines range to the range that would have
applied if Kimbrough had possessed an equal amount of
powder, the court suggested that the 100-to-1 ratio itself
created an unwarranted disparity within the meaning of
§3553(a). Finally, the court did not purport to establish a
ratio of its own. Rather, it appropriately framed its final
determination in line with §3553(a)’s overarching instruc
tion to “impose a sentence sufficient, but not greater than
necessary” to accomplish the sentencing goals advanced in
§3553(a)(2). See supra, at 12. Concluding that “the crack
cocaine guidelines [drove] the offense level to a point
higher than is necessary to do justice in this case,” App.
72, the District Court thus rested its sentence on the
appropriate considerations and “committed no procedural
error,” Gall v. United States, ante, at 17.
The ultimate question in Kimbrough’s case is “whether

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Opinion of the Court

the sentence was reasonable—i.e., whether the District
Judge abused his discretion in determining that the
§3553(a) factors supported a sentence of [15 years] and
justified a substantial deviation from the Guidelines
range.” Ibid. The sentence the District Court imposed on
Kimbrough was 4.5 years below the bottom of the Guide
lines range. But in determining that 15 years was the
appropriate prison term, the District Court properly
homed in on the particular circumstances of Kimbrough’s
case and accorded weight to the Sentencing Commission’s
consistent and emphatic position that the crack/powder
disparity is at odds with §3553(a). See Part II–B, supra.
Indeed, aside from its claim that the 100-to-1 ratio is
mandatory, the Government did not attack the District
Court’s downward variance as unsupported by §3553(a).
Giving due respect to the District Court’s reasoned ap
praisal, a reviewing court could not rationally conclude
that the 4.5-year sentence reduction Kimbrough received
qualified as an abuse of discretion. See Gall, ante, at 20–
21; Rita v. United States, 551 U. S. ___, ___ (2007) (slip
op., at 19–20).
*
*
*
For the reasons stated, the judgment of the United
States Court of Appeals for the Fourth Circuit is reversed,
and the case is remanded for further proceedings consis
tent with this opinion.
It is so ordered.

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SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–6330
_________________

DERRICK KIMBROUGH, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[December 10, 2007]

JUSTICE SCALIA, concurring.
The Court says that “closer review may be in order
when the sentencing judge varies from the Guidelines
based solely on the judge’s view that the Guidelines range
‘fails properly to reflect §3553(a) considerations’ even in a
mine-run case,” but that this case “present[s] no occasion
for elaborative discussion of this matter.” Ante, at 21
(quoting Rita v. United States, 551 U. S. ___, ___ (2007)
(slip op., at 12)). I join the opinion only because I do not
take this to be an unannounced abandonment of the fol
lowing clear statements in our recent opinions:
“[Our remedial opinion] requires a sentencing court to
consider Guidelines ranges, . . . but it permits the
court to tailor the sentence in light of other statutory
concerns as well, see §3553(a).
.
.
.
.
.
“[W]ithout this provision—namely the provision that
makes ‘the relevant sentencing rules . . . mandatory
and impose[s] binding requirements on all sentencing
judges’—the statute falls outside the scope of re
quirement.
.
.
.
.
.
“The district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take

KIMBROUGH v. UNITED STATES
SCALIA, J., concurring

them into account when sentencing.” United States v.
Booker, 543 U. S. 220, 245–246, 259, 264 (2005).
“Under the system described in JUSTICE BREYER’s
opinion for the Court in Booker, judges would no
longer be tied to the sentencing range indicated in the
Guidelines. But they would be obliged to ‘take ac
count of’ that range along with the sentencing goals
Congress enumerated in the SRA at 18 U. S. C.
§3553(a).” Cunningham v. California, 549 U. S. ___,
___ (2007) (slip op., at 14).
“[The sentencing judge] may hear arguments by
prosecution or defense that the Guidelines sentence
should not apply, perhaps because (as the Guidelines
themselves foresee) the case at hand falls outside the
‘heartland’ to which the Commission intends individ
ual Guidelines to apply, USSG §5K2.0, perhaps be
cause the Guidelines sentence itself fails properly to
reflect §3553(a) considerations, or perhaps because
the case warrants a different sentence regardless. See
Rule 32(f).
.
.
.
.
.
“A nonbinding appellate presumption that a Guide
lines sentence is reasonable does not require the sen
tencing judge to impose that sentence. Still less does
it forbid the sentencing judge from imposing a sen
tence higher than the Guidelines provide for the jurydetermined facts standing alone. As far as the law is
concerned, the judge could disregard the Guidelines
and apply the same sentence (higher than the statu
tory minimum or the bottom of the unenhanced
Guidelines range) in the absence of the special facts
(say, gun brandishing) which, in the view of the Sen
tencing Commission, would warrant a higher sentence
within the statutorily permissible range.” Rita, supra,
at ___ (slip op., at 12, 14).

Cite as: 552 U. S. ____ (2007)

SCALIA, J., concurring

These statements mean that the district court is free to
make its own reasonable application of the §3553(a) fac
tors, and to reject (after due consideration) the advice of
the Guidelines. If there is any thumb on the scales; if the
Guidelines must be followed even where the district
court’s application of the §3553(a) factors is entirely rea
sonable; then the “advisory” Guidelines would, over a
large expanse of their application, entitle the defendant to
a lesser sentence but for the presence of certain additional
facts found by judge rather than jury. This, as we said in
Booker, would violate the Sixth Amendment.

Cite as: 552 U. S. ____ (2007)

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–6330
_________________

DERRICK KIMBROUGH, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[December 10, 2007]

JUSTICE THOMAS, dissenting.
I continue to disagree with the remedy fashioned in
United States v. Booker, 543 U. S. 220, 258–265 (2005).
The Court’s post-Booker sentencing cases illustrate why
the remedial majority in Booker was mistaken to craft a
remedy far broader than necessary to correct constitu
tional error. The Court is now confronted with a host of
questions about how to administer a sentencing scheme
that has no basis in the statute. Because the Court’s
decisions in this area are necessarily grounded in policy
considerations rather than law, I respectfully dissent.
In Booker, the Court held that the Federal Sentencing
Guidelines violate the Sixth Amendment insofar as they
permit a judge to make findings that raise a sentence
beyond the level justified by the “ ‘facts reflected in the
jury verdict or admitted by the defendant.’ ” Id., at 232
(quoting Blakely v. Washington, 542 U. S. 296, 303 (2004)
(emphasis deleted)). In my view, this violation was more
suitably remedied by requiring any such facts to be sub
mitted to the jury. Booker, 543 U. S., at 323–325
(THOMAS, J., dissenting in part). That approach would
have been consistent with our longstanding presumption
of the severability of unconstitutional applications of
statutory provisions. Id., at 322–323 (THOMAS, J., dissent
ing in part). And it would have achieved compliance with

KIMBROUGH v. UNITED STATES
THOMAS, J., dissenting

the Sixth Amendment while doing the least amount of
violence to the mandatory sentencing regime that Con
gress enacted. Id., at 324–326 (THOMAS, J., dissenting in
part). The Court, however, chose a more sweeping rem
edy. Despite acknowledging that under the mandatory
Guidelines not “every sentence gives rise to a Sixth
Amendment violation,” the Court rendered the Guidelines
advisory in their entirety and mandated appellate review
of all sentences for “reasonableness.” Id., at 268. Because
the Court’s “solution fail[ed] to tailor the remedy to the
wrong,” I dissented from the remedial opinion. Id., at 313.
As a result of the Court’s remedial approach, we are now
called upon to decide a multiplicity of questions that have
no discernibly legal answers. Last Term, in Rita v. United
States, 551 U. S. __ (2007), the Court held that a Court of
Appeals may treat sentences within the properly calcu
lated Guidelines range as presumptively reasonable.
Today, in Gall v. United States, ante, p. __, the Court holds
that a Court of Appeals may not require sentences that
deviate substantially from the Guidelines range to be
justified by extraordinary circumstances. And here the
Court holds that sentencing courts are free to reject the
Sentencing Guidelines’ 100-to-1 crack-to-powder ratio.
These outcomes may be perfectly reasonable as a matter
of policy, but they have no basis in law. Congress did not
mandate a reasonableness standard of appellate review—
that was a standard the remedial majority in Booker
fashioned out of whole cloth. See 543 U. S., at 307–312
(SCALIA, J., dissenting in part). The Court must now give
content to that standard, but in so doing it does not and
cannot rely on any statutory language or congressional
intent. We are asked here to determine whether, under
the new advisory Guidelines regime, district courts may
impose sentences based in part on their disagreement with
a categorical policy judgment reflected in the Guidelines.
But the Court’s answer to that question necessarily de

Cite as: 552 U. S. ____ (2007)

THOMAS, J., dissenting

rives from something other than the statutory language or
congressional intent because Congress, by making the
Guidelines mandatory, quite clearly intended to bind
district courts to the Sentencing Commission’s categorical
policy judgments. See 18 U. S. C. §3553(b) (2000 ed. and
Supp. V) (excised by Booker). By rejecting this statutory
approach, the Booker remedial majority has left the Court
with no law to apply and forced it to assume the legislative
role of devising a new sentencing scheme.
Although I joined JUSTICE SCALIA’s dissent in Rita
accepting the Booker remedial opinion as a matter of
“statutory stare decisis,” 551 U. S., at __ (slip op., at 2), I
am now convinced that there is no principled way to apply
the Booker remedy—certainly not one based on the stat
ute. Accordingly, I think it best to apply the statute as
written, including 18 U. S. C. §3553(b), which makes the
Guidelines mandatory. Cf. Dickerson v. United States, 530
U. S. 428, 465 (2000) (SCALIA, J., dissenting).
Applying the statute as written, it is clear that the
District Court erred by departing below the mandatory
Guidelines range. I would therefore affirm the judgment
of the Court of Appeals vacating petitioner’s sentence and
remanding for resentencing.

Cite as: 552 U. S. ____ (2007)

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–6330
_________________

DERRICK KIMBROUGH, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[December 10, 2007]

JUSTICE ALITO, dissenting.
For the reasons explained in my dissent in Gall v.
United States, ante, p. ___, I would hold that, under the
remedial decision in United States v. Booker, 543 U. S.
220, 258–265 (2005), a district judge is still required to
give significant weight to the policy decisions embodied in
the Guidelines. The Booker remedial decision, however,
does not permit a court of appeals to treat the Guidelines’
policy decisions as binding. I would not draw a distinction
between the Guideline at issue here and other Guidelines.
Accordingly, I would vacate the decision of the Court of
Appeals and remand for reconsideration.

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