(Slip Opinion) OCTOBER TERM, 2007 1 

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 Guidelines, 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 possession of a firearm in furtherance of a drug-trafficking offense. Under the relevant statutes, Kimbrough’s plea subjected him to a minimum 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 unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses. 

Held: 

1. Under United States v. Booker, 543 U. S. 220, the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Cir-
2 KIMBROUGH v. UNITED STATES 

Syllabus 

cuit erred in holding the crack/powder disparity effectively mandatory. 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 between 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 manufacturing 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 accountable 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 Guidelines sentences for cocaine offenses, the Sentencing Commission employed the statute’s weight-driven scheme, rather than its usual empirical 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 quantities. 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 inconsistent 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 system because of a perception that it promotes an unwarranted divergence based on race. Pp. 8–10.

(3) The Commission has several times sought to achieve a reduction in the crack/powder ratio. Congress rejected a 1995 amendment 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) 3 

Syllabus 

of the ratio under the relevant statutes and Guidelines. Congress

took no action after the Commission’s 1997 and 2002 reports recommended 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 sentences for crack offenses between two and five times longer than sentences 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, requires 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 position, 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 brackets, and this Court declines to read any implicit directive into the

congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341. Drawing meaning from silence is particularly 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 carrier medium. This Court rejected the argument that the Guidelines

and the statute should be interpreted consistently, with the Guidelines’ presumptive-weight method controlling the mandatory minimum 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-
4 KIMBROUGH v. UNITED STATES 

Syllabus 

to-1 ratio to all crack quantities 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 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 determining 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 minimum sentences. Pp. 13–16.

(2) The Government also argues that Congress made clear, in 

disapproving the Commission’s 1995 proposed Guidelines amendment, that the 1986 Act required the Commission and courts to respect the 100-to-1 ratio. But nothing in Congress’ 1995 action suggested 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 advance of congressional action. But 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 concerned 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 statute’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 sentencing courts remain bound by the 1986 Act’s mandatory minimum

sentences, deviations from the 100-to-1 ratio could result in sentencing “cliffs” around quantities triggering the mandatory minimums.

For example, a district court could grant a sizable downward 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 for only 1 additional gram. The LSD Guidelines approved 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) 5 

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 sentence disparities” within the meaning of §3353(a)(6), the proper solution 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 Commission. 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 advisory 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) considerations” 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 departure 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 purposes, 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 calculating 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 purport to establish a ratio of its own, but appropriately framed its final 
6 KIMBROUGH v. UNITED STATES 

Syllabus 

determination in line with §3553(a)’s overarching instruction to “impose a sentence sufficient, but not greater than necessary” to accomplish 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 appraisal, 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) 1 

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, Washington, 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 consider 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 question 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 disagreement with the sentencing disparity for crack and

powder cocaine offenses.” 174 Fed. Appx. 798, 799 (CA4 
2 KIMBROUGH v. UNITED STATES 

Opinion of the Court 

2006) (per curiam). We hold that, under Booker, the cocaine 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 determine, 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’ treatment of crack and powder cocaine offenses. 

I 

In September 2004, petitioner Derrick Kimbrough was

indicted in the United States District Court for the Eastern District of Virginia and charged with four offenses: 

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 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 consecutive term of 5 years to life for the firearm offense.1 In 

—————— 

1The 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) 3 

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 increased 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 statutory 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 judgment, would have been “greater than necessary” to accomplish 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 

—————— 

2Kimbrough 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. 
4 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 mandatory 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 Circuit vacated the sentence. Under Circuit precedent, the

Court of Appeals observed, a sentence “outside the guidelines 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 “advisory” by our decision in Booker.4 

—————— 

3The 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. 4This 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. Johnson, 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) 5 

Opinion of the Court 

II 

We begin with some background on the different treatment of crack and powder cocaine under the federal sentencing 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 Sentencing 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 cocaine, 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. 6As explained in Part II–C, infra, the Sentencing Commission

amended the Guidelines and reduced sentences for crack offenses 
6 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) 7 

Opinion of the Court 

crack use was especially prevalent among teenagers; and 

(5) crack’s potency and low cost were making it increasingly 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 formulating the Sentencing Guidelines.7 In the main, the Commission 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 

—————— 

7Congress 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. 
8 KIMBROUGH v. UNITED STATES 

Opinion of the Court 

100-to-1 ratio. The statute itself specifies only two quantities 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 Report 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 conduct associated with their use and distribution that more 

recent research and data no longer support.” Ibid.; see 

United States Sentencing Commission, Report to Congress: 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 relative harmfulness” of crack cocaine, and the “seriousness of 

—————— 

8An 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. 
Cite as: 552 U. S. ____ (2007) 9 

Opinion of the Court 

most crack cocaine offenses”). For example, the Commission 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 traffickers 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 produced.” 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 differential 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
10 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 congressional action. 

The Commission’s most recent report, issued in 2007, 

—————— 

9Subsection 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.” 
Cite as: 552 U. S. ____ (2007) 11 

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 Commission 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 associated 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 problems generated by the crack/powder disparity, the Commission noted that “[a]ny comprehensive solution requires

appropriate legislative action by Congress.” 2007 Report 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

—————— 

10The amended Guidelines still produce sentencing ranges keyed to 

the mandatory minimums in the 1986 Act. Under the pre-2007 Guidelines, the 5- and 50-gram quantities that trigger the statutory minimums produced sentencing ranges that slightly exceeded those statutory 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. 11The 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. 
12 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. 

—————— 

12The 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. 
Cite as: 552 U. S. ____ (2007) 13 

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 considerations, 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)] factors.” 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 disagreeing with the 100-to-1 ratio.13 The Government acknowledges 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 asserts 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

—————— 

13The 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 inconsistent with the §3553(a) factors. 
14 KIMBROUGH v. UNITED STATES 

Opinion of the Court 

cally incoherent” when combined with mandatory minimum 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 sentenced 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 congressional 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 inappropriate here, for Congress has shown that it knows how to 

direct sentencing practices in express terms. For example,

Congress has specifically required the Sentencing Commission 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 determining 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 
Cite as: 552 U. S. ____ (2007) 15 

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 Commission 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 applicable 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 medium. The defendant in Neal argued that the revised

Guidelines and the statute should be interpreted consistently and that the “presumptive-weight method of the 

Guidelines should also control the mandatory minimum

calculation.” 516 U. S., at 287. We rejected that argument, emphasizing that the Commission had not purported 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 jeopardy. 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 
16 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 Commission 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 quantities 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 imposed for trafficking in a quantity of crack cocaine should 

—————— 

14At 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 challenge 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”). 
Cite as: 552 U. S. ____ (2007) 17 

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 suggested 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 cocaine.” §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 deviation from the 100-to-1 ratio in the Guidelines (or by sentencing 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 exorbitance 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 Guidelines for United States Courts, 72 Fed. Reg. 28571–28572.

Adopting the Government’s analysis, the amended Guidelines would conflict with Congress’ 1995 action, and with 

the 1986 Act, because the current Guidelines ratios deviate from the 100-to-1 statutory ratio. Congress, however,

did not disapprove or modify the Commission-initiated

2007 amendment. Ordinarily, we resist reading congressional intent into congressional inaction. See Bob Jones 
18 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 position, 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 disagreements with the crack/powder ratio, unwarranted disparities of two kinds will ensue. See 18 U. S. C. §3553(a)(6) 

(sentencing courts shall consider “the need to avoid unwarranted sentence disparities”). First, because sentencing 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 downward 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 defendant responsible for only 1 additional gram. Second, the 

Government maintains that, if district courts are permitted to vary from the Guidelines based on their disagreement 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 
Cite as: 552 U. S. ____ (2007) 19 

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 excessive 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 Congress 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 mandatory. 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 

—————— 

15The 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. 
20 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 mandatory minimum sentences. To reach an appropriate sentence, 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 Commission 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 
Cite as: 552 U. S. ____ (2007) 21 

Opinion of the Court 

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) 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 exercise 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 necessary” 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 minerun 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
22 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 defendant 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 characteristics.” §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 Commission’s reports criticizing the 100-to-1 ratio, cf. 

§3553(a)(5) (Supp. V), noting that the Commission “recognizes that crack cocaine has not caused the damage that 

the Justice Department alleges it has.” App. 72. Comparing 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 instruction 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 
Cite as: 552 U. S. ____ (2007) 23 

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 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). 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 appraisal, 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 consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 552 U. S. ____ (2007) 1 

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 following 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 requirement. 

. . . . . 

“The district courts, while not bound to apply the

Guidelines, must consult those Guidelines and take 
2 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 account 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 individual Guidelines to apply, USSG §5K2.0, perhaps because 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 Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does 

it forbid the sentencing judge from imposing a sentence 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 statutory 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 Sentencing 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) 3 

SCALIA, J., concurring 

These statements mean that the district court is free to 

make its own reasonable application of the §3553(a) factors, 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 reasonable; 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) 1 

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 constitutional 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 submitted 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., dissenting in part). And it would have achieved compliance with 
2 KIMBROUGH v. UNITED STATES 

THOMAS, J., dissenting 

the Sixth Amendment while doing the least amount of

violence to the mandatory sentencing regime that Congress enacted. Id., at 324–326 (THOMAS, J., dissenting in 

part). The Court, however, chose a more sweeping remedy. 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 calculated 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) 3 

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 statute. 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) 1 

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.