UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4198

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONY ALLEN GREGG,

Defendant - Appellant.

No. 10-4199

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

TONY ALLEN GREGG,

Defendant - Appellee.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Chief 

District Judge. (3:09-cr-00180-JRS-1)

Argued: May 13, 2011 Decided: June 17, 2011

Before MOTZ, DAVIS, and KEENAN, Circuit Judges.
2

Affirmed in part, vacated in part, and remanded by unpublished

opinion. Judge Keenan wrote the opinion, in which Judge Motz 

and Judge Davis joined. Judge Davis wrote a separate concurring 

opinion.

ARGUED: Alan Hideto Yamamoto, Alexandria, Virginia, for 

Appellant/Cross-Appellee. Richard Daniel Cooke, OFFICE OF THE 

UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee/CrossAppellant. ON BRIEF: Brian S. Foreman, BOWEN, CHAMPLIN, CARR, 

FOREMAN AND ROCKECHARLIE, Richmond, Virginia, for 

Appellant/Cross-Appellee. Neil H. MacBride, United States 

Attorney, Alexandria, Virginia, Roderick C. Young, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Richmond, Virginia, for Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.
3

KEENAN, Circuit Judge:

Tony Allen Gregg was convicted by a jury of conspiracy to 

distribute and possess with intent to distribute 50 grams or 

more of cocaine base (crack cocaine), in violation of 21 U.S.C. 

§§ 841(a)(1), 846 (2006). The district court sentenced Gregg 

under § 841(b)(1)(A) to the mandatory term of life imprisonment 

required by the statute for a third conviction of a felony drug 

offense. Fifteen days after sentencing Gregg, the district 

court reduced Gregg’s sentence to 300 months’ imprisonment, 

based on a mistake in the government’s information listing 

Gregg’s prior convictions.

Gregg appeals his conviction, alleging that the district 

court erred in its response to a question submitted by the jury 

during its deliberations, and that the evidence was insufficient 

to support his conviction. On cross-appeal, the government 

asserts that the district court violated Federal Rule of 

Criminal Procedure 35 when the court modified Gregg’s sentence. 

We affirm Gregg’s conviction, but vacate his sentence and remand 

the case to the district court with instructions that the 

district court reinstate the statutory mandatory sentence of 

life imprisonment.
4

I.

The evidence at trial showed that on March 24, 2009, 

Detective Greg Russell of the Richmond Police Department 

detained Gregg outside the Deluxe Motel in relation to an 

investigation of an armed robbery. Gregg informed Detective 

Russell that Gregg “work[ed] for [Detective Erol] Fernandez,” a 

member of the Department’s Narcotics Division.1

The government also presented evidence that on May 12, 

2009, the Federal Bureau of Investigation (FBI) and the Richmond 

Police Department were cooperating in an investigation of gang 

activity at the Deluxe Motel. During this investigation, an FBI 

informant approached Gregg, who was present at the motel, in 

order to make a “controlled drug buy.” At the time, Gregg had 

$900 in cash on his person but was not carrying any drugs. 

Therefore, the intended transaction did not take place. A 

 Suspecting drug 

activity, Detective Russell asked Gregg if he was carrying 

“anything . . . that shouldn’t be there.” Gregg admitted that 

he possessed drugs, and handed to Detective Russell a plastic 

bag containing about 3.57 grams of crack cocaine.

 1 Gregg was listed as an “informant” with the Richmond 

Police Department but had never performed any work for the 

Department. Gregg did complete six “controlled drug buys” for 

the Federal Bureau of Investigation, which “deactivated” Gregg 

after the March 24, 2009 incident. The Richmond Police 

Department “deactivated” Gregg in May 2009.
5

government witness testified that Gregg had borrowed the sum of 

$900 in order to purchase crack cocaine.

The next day, Gregg was arrested on federal drug charges. 

After waiving his Miranda rights, Gregg made a statement to FBI 

Special Agents. According to a report by Special Agent Scott 

Umphlett, Gregg admitted that he began selling crack cocaine in 

March 2009, and that he had planned to sell the drug at the 

Deluxe Motel on March 24, 2009. Gregg also stated that he 

sometimes sold several “eight balls” in a day.2

The government also presented testimony from four witnesses 

who either had purchased crack cocaine from Gregg, or had 

knowledge of drug transactions involving Gregg. One of these 

witnesses, April Brooks, estimated that Gregg sold $1,500 or 

more of crack cocaine in an average day, and that Gregg 

purchased a new supply of drugs, or “re-upped,” every two or 

three days. Brooks recalled that she had observed Gregg with as 

much as 14 to 27 grams of crack cocaine at one time. Another 

witness, Amy Lester, testified that she lived with a man who had 

 Based on this 

representation, Special Agent Umphlett calculated 

“conservatively” that between March 24, 2009 and May 12, 2009, 

Gregg sold about 171.5 grams of crack cocaine.

 2 An “eight ball” is 3.5 grams or one-eighth an ounce of 

cocaine.
6

supplied Gregg with drugs on between five and ten occasions 

during the period from March 2009 until May 12, 2009.

Phylicia Lewis, another witness presented by the 

government, testified that on three occasions, Gregg purchased 

crack cocaine for her to sell. Lewis also stated that “on a 

good day,” Gregg could sell between one ounce and one and onehalf ounces of crack cocaine, and she estimated that Gregg had 

four such “good days” each week. According to Lewis, on a “slow 

day,” Gregg generally sold an amount of crack cocaine totaling 

between one quarter of an ounce and one-half of an ounce. Lewis 

further stated that Gregg sold drugs every day of the week.

FBI Special Agent Robert Scanlon testified that one ounce 

of crack cocaine weighs 28.3 grams. He calculated that a dealer 

who sells one ounce of crack each day would sell more than 50 

grams in a two-day period. Special Agent Scanlon also testified 

that the quantity of crack cocaine that Gregg possessed on March 

24, 2009, was more consistent with distribution than with 

personal use of the drug.

In his defense, Gregg presented testimony from his former 

probation officer, Mindy Grizzard-Applewhite. She stated that 

Gregg told her in March or April of 2009 that he “was hooked on 

drugs again,” and that he needed her help. Grizzard-Applewhite 

stated that although she was no longer supervising Gregg at that 
7

time, she tried to assist him in obtaining treatment but was 

unsuccessful.

II. 

At the close of the evidence, the district court instructed 

the jury that the government was required to prove beyond a 

reasonable doubt that Gregg “knowingly and voluntarily became a 

part of [a] conspiracy.” During its deliberations, the jury 

inquired whether this language meant that the government also 

had to prove that Gregg “acted out the conspiracy in question.” 

In answering this question, the district court reminded the 

jurors that it expressly had charged that “[t]he government 

[was] not required to prove that the parties or the members of 

the conspiracy were successful in achieving any or all of the 

objects of the agreement.” The district court then stated,

In this case, of course, the allegation is that the 

defendant was involved in a conspiracy to distribute 

and to possess with intent to distribute cocaine base. 

And the evidence, if you accept it, is that he 

actually sold cocaine base or possessed it with the 

intent to distribute. So it is not required that the 

conspiracy be successful or that the object of the 

conspiracy be borne out. But, of course, in this case 

you have to deal with the evidence that you have 

before you. Again, you can reject the evidence. But 

the evidence is there and you either credit it or you 

don’t. 

In response to these comments by the court, defense counsel 

stated, “I think the [jury’s] question goes to did [Gregg] 
8

accomplish the 50 grams or more as alleged in the indictment.” 

Defense counsel asked the court to instruct the jury that the 

government must prove that Gregg “conspired with others to do 

more than 50 grams as alleged in the indictment.” The district 

court refused the requested instruction.

On appeal, Gregg raises two challenges to the district 

court’s response to the jury’s question. Gregg contends that 

the district court erred by refusing to give a lesser-included 

offense instruction, and that the district court created 

prejudice in its response by effectively lending credence to the 

government’s evidence. We address these arguments in turn.

A.

At the outset, we observe that Gregg did not request a 

lesser-included offense instruction in the district court, 

either before the jury began deliberations or when the district 

court responded to the jury’s question. Rule 30(d) of the 

Federal Rules of Criminal Procedure provides that a party must 

assign error to an omission from the jury charge “before the 

jury retires to deliberate,” by stating distinctly the grounds 

for the objection. When a claimed omission is not preserved in 

this manner, such omission is reviewed for plain error. See

Fed. R. Crim. P. 52(b). To establish plain error, a defendant 

must demonstrate that the asserted defect in the trial in fact 
9

constituted error, that the error was plain, and that the error 

affected the defendant’s substantial rights. United States v. 

Jackson, 124 F.3d 607, 614 (4th Cir. 1997) (citing United States 

v. Olano, 507 U.S. 725, 732 (1993)).

In certain circumstances, the failure to give a lesserincluded offense instruction may result in trial error when a 

jury suspects that a defendant is guilty of some offense, but 

when one of the elements of the crime charged is in doubt. In 

such a circumstance, absent a lesser-included offense 

instruction, the jury may fail to give full effect to the 

government’s proof burden and resolve any doubts in favor of 

conviction. See Schmuck v. United States, 489 U.S. 705, 717 n.9 

(1989). However, a criminal defendant is not entitled to a 

lesser-included offense in every case. Such an instruction is 

warranted only when the proof on the element in dispute, which 

differentiates the greater and lesser offenses, is sufficient to 

allow a jury to find the defendant innocent of the greater 

offense and guilty of the lesser offense. See United States v. 

Blankenship, 548 F.2d 1118, 1120 (4th Cir. 1976), cert. denied, 

425 U.S. 978 (1976).

In the present case, Gregg maintains that that the district 

court should have instructed the jury regarding a “lesser 

quantity” of cocaine. He contends that the evidence at trial 

demonstrated that he personally used crack cocaine, that he was 
10

not carrying large amounts of cash on March 24, 2009, or on May 

12, 2009, and that he thought he was working as a government 

informant. According to Gregg, these facts call into question 

the government’s proof that he conspired to distribute and 

possessed with intent to distribute 50 grams or more of crack 

cocaine.

We disagree with Gregg’s characterization of the evidence. 

The evidence amply demonstrated that the quantities of crack 

cocaine that Gregg bought and sold far exceeded 50 grams. As 

described above, Special Agent Umphlett estimated that Gregg 

sold 171.5 grams of crack cocaine in the period between March 

24, 2009 and May 12, 2009. Further, to the extent that Gregg 

suggests the district court should have instructed the jury 

regarding the offense of simple possession of crack cocaine, 

rather than conspiracy to distribute and possess with the intent 

to distribute 50 grams or more of crack cocaine, that argument 

also is foreclosed by the overwhelming evidence in this case, 

which included Gregg’s confession that he sometimes sold several 

“eight balls” in a single day. A conclusion that Gregg merely 

possessed the drugs at issue for personal use cannot fairly be 

inferred from this record. Thus, because the evidence could not 

reasonably be construed to allow the jury to find Gregg innocent 

of the offense charged but guilty of a lesser-included offense, 

we hold that the district court did not err by failing to give a 
11

lesser-included offense instruction. See Blankenship, 548 F.2d 

at 1120.

B.

Gregg next argues that he was prejudiced by the district 

court’s summary of the evidence in the above-quoted response to 

the jury’s question. We apply a plain error standard of review 

to this claim, because Gregg did not raise this objection before 

the district court. See Fed. R. Crim. P. 52(b).

A district court generally may reference the evidence 

presented at trial to assist the jury in understanding the 

facts, but the court must exercise care not to usurp the jury’s 

function as the ultimate trier of fact. See United States v. 

Tello, 707 F.2d 85, 88-90 (4th Cir. 1983). In this case, the 

district court stayed well within its proper role of supervising 

the fact-finding process. The district court’s recitation of 

the evidence in this case did not contain any expressed opinion 

regarding the evidence or the witnesses’ credibility. 

Additionally, the district court emphasized contemporaneously 

with its comments on the evidence that the jury could accept or 

reject the evidence described. See id. The court also 

instructed the jury prior to trial that “[n]othing the Court may 

say or do during the course of the trial is intended to indicate 

nor should it be taken by you as indicating what your verdict 
12

should be.” Thus, we hold that the district court did not 

commit plain error in its remarks on the government’s evidence.

III.

Gregg also argues that the evidence was insufficient to 

support his conviction. To prove the charge of conspiracy to 

distribute and possess with intent to distribute 50 grams or 

more of crack cocaine, the government was required to establish 

beyond a reasonable doubt that there was an agreement between 

two or more persons to distribute and possess with intent to 

distribute that amount of crack cocaine, that the defendant knew 

of the conspiracy, and that the defendant knowingly and 

voluntarily became a part of the conspiracy. United States v. 

Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008).

We examine Gregg’s challenge to the sufficiency of the 

evidence under a well-established standard of review. We 

determine whether, viewing the evidence in the light most 

favorable to the government, there is substantial evidence to 

support the conviction. United States v. Kelly, 510 F.3d 433, 

440 (4th Cir. 2007). We do not review the credibility of the 

witnesses, but assume that the jury resolved any inconsistencies 

in the evidence in the government’s favor. Id. After 

considering all the evidence presented at trial, both direct and 

circumstantial, and upon according the government all reasonable 
13

inferences from the facts shown, we will uphold a verdict if a 

rational trier of fact could find the essential elements of the 

crime beyond a reasonable doubt. United States v. Harvey, 532 

F.3d 326, 333 (4th Cir. 2008); United States v. Collins, 412 

F.3d 515, 519 (4th Cir. 2005).

Gregg asserts that the evidence shows only that he engaged 

in “buy-sell” transactions and does not support a conspiracy 

conviction. He also contends that the evidence established that 

he actually thought that he was working as an informant during 

the months in question. Upon our review of the record, we 

disagree with Gregg’s arguments.

The government presented substantial evidence to permit a 

jury to convict Gregg of the crime charged. This Court 

previously has stated that evidence of a “buy-sell” transaction, 

combined with evidence of a substantial quantity of drugs, can 

support a reasonable inference of the existence of a conspiracy. 

See Yearwood, 518 F.3d at 226. Here, the testimony from law 

enforcement officers, the testimony from Gregg’s acquaintances, 

Gregg’s confession to FBI Special Agents, the undisputedly large 

quantity of crack cocaine involved, and the nature of Gregg’s 

drug transactions during the period in question, were sufficient 

to permit a reasonable jury to find beyond a reasonable doubt 

that Gregg conspired to distribute and possessed with intent to 

distribute 50 grams or more of crack cocaine. Therefore, we 
14

hold that the evidence was sufficient to support Gregg’s 

conviction.

IV.

In its cross-appeal, the government argues that the 

district court violated Federal Rule of Criminal Procedure 35 

when it reduced Gregg’s sentence. The government contends in 

the alternative that the imposition of Gregg’s initial sentence 

was not clear error, and that the district exceeded the 

fourteen-day limit of Rule 35(a) when it reduced Gregg’s 

sentence beyond that authorized time period.

Rule 35(a) permits a district court, within fourteen days 

of sentencing, to “correct” a sentence that is based on an 

“arithmetical, technical, or other clear error.” We consider 

this provision in the context of the various procedural actions 

that occurred in this case.

Before trial, pursuant to 21 U.S.C. § 851, the government 

had filed informations notifying Gregg of two prior convictions 

of felony drug offenses that would subject him to a mandatory 

life sentence under 21 U.S.C. § 841(b)(1)(A) in the event of a 

third conviction. Gregg did not challenge the sufficiency of 

the government’s documents or the validity of the underlying 

convictions. After the jury verdict in this case, the district 
15

court sentenced Gregg to life imprisonment in accordance with 21 

U.S.C. § 841(b)(1)(A).

The following day, the district court informed counsel that 

one of the informations filed by the government contained two 

mistakes. The relevant information stated: “On July 26, 1996, 

the defendant, TONY ALLEN GREGG, was found guilty of possession 

with the intent to distribute cocaine, a felony, in the Circuit 

Court fo[r] the City of Richmond, Virginia (Case # 96-691-F).” 

The district court explained that the original conviction order 

was entered on July 9, 1996, but was amended on July 26, 1996, 

and that the state circuit court corrected the conviction order 

a second time, in October 2000, to reflect that Gregg was 

convicted of simple possession of cocaine, not possession with 

the intent to distribute.3

 3 The conviction of possession of cocaine also is a “felony 

drug offense” for purposes of triggering enhanced penalties 

under § 841(b).

 Thus, the information filed by the 

government under § 851 had stated incorrectly both the original 

conviction date and the offense of conviction. Based on these 

defects, the district court concluded that the government’s 

information filed under § 851 was of questionable validity. 

Accordingly, fifteen days after sentencing Gregg to a term of 

life imprisonment, the district court reduced Gregg’s sentence 

to a term of 300 months’ imprisonment.
16

We agree with the government that the defects in the 

government’s information did not create any “clear error” in 

Gregg’s sentence permitting a correction under Rule 35(a). The 

scope of circumstances constituting “clear error” that may be 

corrected under Rule 35(a) is narrow, and generally requires 

that some reversible error occurred in the original sentencing 

by the district court. United States v. Fields, 552 F.3d 401, 

404 (4th Cir. 2009); see Fed. R. Crim. P. 35(a) advisory 

committee's note (“The authority to correct a sentence under 

[Rule 35(a)] is intended to be very narrow and to extend only to 

. . . errors which would almost certainly result in a remand of 

the case . . . .”) (1991 Amendments). When a district court 

“unequivocally states a sentence and then imposes it, and the 

sentence is not the product of error, the district court has no 

authority to alter that sentence.” United States v. Fraley, 988 

F.2d 4, 7 (4th Cir. 1993).

The statutory purpose of an information filed under § 851 

is to enable a defendant to identify, and to have the ability to 

challenge, the government’s intended use of any prior conviction 

to support a sentencing enhancement. See United States v. 

Steen, 55 F.3d 1022, 1027 (5th Cir. 1995). Therefore, when the 

government timely provides in an information constitutionallyadequate notice of a defendant’s prior convictions, a district 
17

court may enhance a defendant’s sentence in accordance with the 

contents of the information. Id.

The information at issue in this case satisfied the 

protection afforded by § 851. The information, which was filed 

in the district court before trial, identified the proper court 

of conviction, the correct case number, and the July 26, 1996 

date on which the state circuit court entered the first 

corrected conviction order. Moreover, there is no evidence in 

the record before us that Gregg had any difficulty identifying 

the conviction contained in the information. Gregg has not 

asserted that he was unable to ascertain what conviction was 

referenced in the information, nor has he challenged the 

validity of the conviction itself.

In view of this record, and of Gregg’s failure to show that 

he was unable to determine the nature of the conviction 

referenced in the government’s information, we conclude that the 

mistakes in the information do not affect its content showing 

that Gregg was convicted of a felony drug offense as a result of 

the 1996 proceedings in the state circuit court. Thus, we hold 

that Gregg’s original sentence was not affected by the mistakes

in the government’s information, and that there was no “clear 

error” justifying a “corrected” sentence in this case. 

Accordingly, we affirm Gregg’s conviction, but vacate his 

sentence. We remand the case to the district court with 
18

instructions that the district court reinstate the mandatory 

sentence of life imprisonment provided under 21 U.S.C. § 

841(b)(1)(A).4

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

 4 Because we hold that the district court lacked any basis 

under Rule 35(a) to correct Gregg’s sentence, we need not 

address the government’s alternative argument that the district 

court exceeded the time limitations of Rule 35(a) in changing 

Gregg’s term of imprisonment.
19

DAVIS, Circuit Judge, concurring.

I concur fully in Judge Keenan’s opinion for the panel and 

offer these additional comments.

A.

The distinguished district judge was aghast that the now 

forty-year-old Tony Gregg would spend the rest of his life in 

federal prison for selling small amounts of crack cocaine over a 

period of several weeks out of a hotel room in a run-down 

section of Richmond. See infra n.6. The judge uncovered 

(shortly after having imposed the mandatory life sentence) a 

seeming defect in the government’s information filed pursuant to

21 U.S.C. § 851 and elected to reconvene the sentencing 

proceeding and to impose, instead, a twenty-five year, within 

Guidelines sentence. As the panel opinion makes clear, we are 

constrained to undo the district court’s stab at achieving a 

more just sentence. 

The record shows that Gregg was a classic “utility player”

in America’s forty-year “war on drugs”: user, seller, “snitch.” 

A tenth-grade drop-out (after repeating the second grade and the 

seventh grade) with four half-siblings, he began to use illegal 

narcotics in his early teens. For a time, he lived in an 

abusive family environment; later, he moved between his mother, 

grandmother, and father, sometimes in Virginia, sometimes in 
20

Ohio. As a young man, he attempted suicide more than once 

(although he described the episodes as mere attempts to “get 

high”). Throughout his 20s and early 30s, he was in and out of 

jails and prisons on a regular basis, sometimes for assaultive 

behavior. He was convicted of illegal gun possession in 2001 and 

served a three-year federal prison sentence.

Later, once again released from incarceration and 

(according to his probation officer, who testified below) having 

adjusted reasonably well upon his return to free society, in 

consideration for unspecified monetary compensation, he became a 

highly-valued, highly-effective confidential informant for the 

Federal Bureau of Investigation’s Violent Crime Task Force in 

Richmond, on whose behalf he engaged in half a dozen undercover 

drug transactions from mid-2008 through early 2009. 

Sometime in early 2009, during his habitual association 

with drug users and dealers while working on behalf of the FBI 

to prosecute others involved in the drug trade, Gregg fell off 

the wagon and began to use and sell illegal narcotics again. As 

explained by Judge Keenan, he was unexpectedly accosted by 

Richmond robbery detectives (investigating crimes of which he 

was not suspected) while in possession of more than three grams 

of crack cocaine in March 2009; they seized the cocaine but did 

not arrest him. It was only weeks later, in May 2009, when Gregg 

himself became a target of an undercover drug sting by the FBI, 
21

that he was finally arrested and prosecuted in this case. No 

doubt believing that he might be allowed to “work off” the March 

and May charges when he was interviewed by some of the very 

agents by whom he had recently been employed to make undercover 

drug purchases, Gregg promptly waived his Miranda rights and 

freely discussed his recent drug dealing activity. 

Despite Gregg’s countless arrests starting as a juvenile at 

age 15 and his criminal history category of V, the pre-sentence 

report in this case recites: “The defendant does not qualify for 

a sentence enhancement under Career Offender, Criminal 

Livelihood, Armed Career Criminal or Repeat and Dangerous Sex 

Offender sections . . . of the Sentencing Guidelines.” 

Why, then, a life sentence, the kind of sentence sometimes 

imposed on convicted murderers? Apart from what his lawyer 

described as official animus arising from Gregg having 

“embarrassed” the FBI by dealing drugs while on the Bureau’s 

payroll, it appears that the federal prosecutors were told by 

Virginia state prosecutors that Gregg, who was for some period 

of time involved in the Crips gang (as the FBI full well knew at 

all relevant times), had “participated” in the murder of a highvolume Richmond drug dealer who was Gregg’s supplier. J.A. 338-
22

39.1

Understandably, perhaps, to many, Gregg is not a 

sympathetic figure; they will think: he got what he deserved. To 

many others, perhaps, matters are not so clear. Indeed, many 

would say that Tony Gregg seems to be one more of the drug war’s 

“expendables.” See Nora V. Demleitner, “Collateral Damage”: No 

Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).

To be sure, so far as the record shows, no such evidence was 

ever presented in this case, either at trial or at sentencing.

Furthermore, prior to trial, Gregg was offered a plea agreement 

for a twenty-year sentence; when he rejected the government’s 

offer, the government went all out for the life sentence found 

to be unjust by the district court. Of the government’s four 

non-law-enforcement witnesses at the one-day trial below, all 

four were women who were themselves, like Gregg, users and 

sellers of crack cocaine and heroin who worked with Gregg to 

sell crack cocaine. 

B.

This case presents familiar facts seen in courts across the 

country: a defendant addicted to narcotics selling narcotics in 

order to support his habit. Unfortunately for Gregg and 

 1 In addition, because Gregg’s first trial ended in a hung 

jury, the government was required to try him a second time.
23

countless other poorly-educated, drug-dependant offenders, 

current drug prosecution and sentencing policy mandates that he 

spend the rest of his life in prison. He is not alone: the 

United States currently has the highest rate of incarceration in 

the world. The Pew Ctr. on the States, One in 100: Behind Bars 

in America 5 (2008), available at http:// 

www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FIN

AL_2-1-1_FORWEB.pdf. The United States also boasts the largest 

prison population in the world, with 2.3 million adult Americans 

behind bars.2

This staggering incarceration rate is traceable to the socalled “War on Drugs,” which began in 1971 and picked up steam 

in the mid-1980s, when Congress decided to get “tough” on drugId.; see also Adam Liptak, More Than One in 100 

Adults Are Now in Prison in U.S., N.Y. Times, Feb. 29, 2008, at 

A14. Further, Gregg, like most other drug offenders, has a drug 

dependence or abuse problem. Christopher J. Mumola & Jennifer C. 

Karberg, Bureau of Justice Statistics Special Report, U.S. Dep’t 

of Justice, Drug Use and Dependence, State and Federal 

Prisoners, 2004, at 7 tbl.5 (2006), available at

http://bjs.ojp.usdoj.gov/content/pub/ascii/dudsfp04.txt. 

 2 The Pew Report figures do not take into account the number 

of juveniles currently in detention centers, which means that 

the total number of incarcerated Americans is higher still. Id.
24

related crime by imposing lengthy mandatory minimum prison 

sentences for offenders convicted of participating in the 

illegal drug trade. See Barbara Vincent & Paul Hofer, Fed. 

Judicial Ctr., The Consequences of Mandatory Minimum Prison 

Terms: A Summary of Recent Findings 4 (1994), available at

http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/ 

$File/conmanmin.pdf; Paige Harrison & Allen Beck, U.S. Dept. of 

Justice, Prisoners in 2002 1 (2003), available at

http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=921. To 

effectuate the change in drug policy, Congress passed the AntiDrug Abuse Act of 1986, which allocated increased funding for 

drug enforcement and required mandatory minimum sentences for 

certain drug offenses. See U.S. Drug Enforcement Administration, 

1985-1990, http://www.usdoj.gov/dea/pubs/history/1985-1990.html. 

The Anti-Drug Abuse Act of 1988 added additional funds for 

enforcement and similarly increased penalties for drug 

violations. Id. Finally, the Federal Sentencing Guidelines 

became effective on November 1, 1987, coinciding with the 

passage of the federal Anti-Drug Abuse Acts of 1986 and 1988. 

These laws created an array of mandatory minimum sentences for 

drug offenses, stripping away the discretion that judges 

traditionally employed in sentencing drug offenders and shifting 

sentencing authority to prosecutors through their charging 

decisions. As a result, the proportion of drug offenders 
25

sentenced to prison swelled from 79% to 93% between 1988 and 

2004, often for extraordinarily lengthy periods. Bureau of 

Justice Statistics, Compendium of Federal Justice Studies, 2004

(December 2006). In addition, the elimination of parole resulted 

in offenders serving much longer sentences than in the past. 

Marc Mauer & Ryan King, A 25 Year Quagmire: The War on Drugs and 

Its Impact on American Society 7 (2007). 

The mass incarceration of drug offenders persists into the 

second decade of the twenty-first century despite the fact that 

research consistently demonstrates that the current approach to 

combating illegal drug use and drug trafficking is a failure. 

For example, one of the primary reasons for the war on drugs was 

to “create the proper incentives for the Department of Justice 

to direct its most intense focus on major traffickers and 

serious traffickers.” Id. at 14. In other words, the new drug 

laws were intended to target offenders who import, control and 

manage the distribution of substantial quantities. However, the

vast majority of drug offenders in the federal system are either 

street-level dealers, couriers, or low-level assistants. United 

States Sentencing Commission, Cocaine and Federal Sentencing 

Policy, May 2007, at 19. As Judge Sweet recently stated, lengthy 

incarcerations have “not been reserved for the worst offenders; 

the overall average sentence length for a federal drug offense 

ranges from 129 months for crack cocaine to 40.4 months for 
26

marijuana, with the majority of cocaine and crack offenders 

subject to five- and ten-year mandatory minimums, despite the 

fact that the overwhelming majority of them, approximately 90% 

in 2005, committed no violence in connection with their drug 

crimes.” Robert Sweet, Will Money Talk?: The Case For a 

Comprehensive Cost-Benefit Analysis of the War on Drugs, 20 

Stan. L. & Pol’y Rev. 229, 230-31 (2009). 

As the Federal Judicial Center concluded nearly twenty 

years ago, “the weight of the evidence clearly shows that 

enactment of mandatory penalties has either no demonstrable . . 

. effects or short-term effects that rapidly waste away.” 

Barbara S. Vincent & Paul J. Hofer, Federal Judiciary Ctr., The 

Consequences of Mandatory Minimum Prison Terms: A Summary of 

Recent Findings 1 (1994) (quoting Professor Michael Tonry, 

Mandatory Penalties, in 16 Crime & Justice: A Review of 

Research, 243, 244 (1990)); see also Incarceration and Crime: A 

Complex Relationship, The Sentencing Project (2005); Don Stemen, 

Reconsidering Incarceration: New Directions for Reducing Crime, 

The Vera Institute for Justice (2007). 

This over-incarceration is astronomically expensive. 

Taxpayers spend almost $70 billion a year on corrections and 
27

incarceration.3

 3 These costs are particularly significant to the federal 

system because of the increase in drug prosecutions brought in 

federal courts, presumably because of the potential for harsh 

mandatory minimums. Bureau of Justice Statistics, Federal 

Criminal Case Processing, 2002 (January 2005); see also Heather 

West, William Sabol & Sarah Greenman, Prisoners in 2009, Bureau 

of Justice Statistics (2010) (In 1980, prisoners serving time 

for drug offenses constituted about one-quarter of the federal 

population while in 2009, the percentage had doubled.). 

The Pew Ctr. on the States, One in 31: The Long 

Reach of American Corrections 2009 11 (2009); see also 74 Fed. 

Reg. 33,279 (July 10, 2009) (reporting that in 2008, the average 

annual cost of incarceration for federal inmates was $25,895). 

In contrast, drug treatment is more cost effective in 

controlling drug-related crime than the continued expansion of 

the prison system. For example, a RAND Corporation analysis 

concluded that spending the same funds on drug treatment would 

reduce drug-related crime 15 times as much as mandatory minimum 

sentencing. Jonathan Caulkins, C. Peter Rydell, Williams 

Schwabe, & James Chiesa, Mandatory Minimum Drug Sentences: 

Throwing Away the Key or the Taxpayers’ Money? (RAND 1997). 

While drug treatment has been demonstrated to be more effective 

than incarceration without treatment, there has been a sharp 

decline in persons actually receiving drug treatment while 

incarcerated. See Christopher Mumola & Jennifer Karberg, Drug 

Use and Dependence, State and Federal Prisoners, 2004, Bureau of 

Justice Statistics (October 2006). 
28

As has been well documented, these harsh policies are 

devastating to communities of color.4

 4 Similarly, these policies have a disproportionate impact 

on female offenders, see Paige Harrison & Allen Beck, Prisoners 

in 2005, Bureau of Justice Statistics November 2006, and 

juveniles, see Patricia Soung, Social and Biological 

Constructions of Youth: Implications for Juvenile Justice and 

Racial Equity, 6 NW J. L. & Soc. Pol’y 428 (2011) (noting that 

the War on Drugs is sweeping youth in unprecedented numbers into 

the criminal justice system); Ellen M. Weber, Bridging the 

Barriers: Public Health Strategies for Expanding Drug Treatment 

in Communities, 57 Rutgers L. Rev. 631, 644-48 (2005).

Despite the fact that 

whites engage in drug offenses at a higher rate than blacks, 

blacks are incarcerated for drug offenses at a rate that is 10 

times greater than their white counterparts. Jamie Fellner, 

Race, Drugs and Law Enforcement in the United States, 20 Stan. 

L. & Pol’y Rev. 257, 266-69 (2009) (citing U.S. Dep’t of Health 

& Human Services, Substance Abuse & Mental Health Services 

Admin., Results from the 2006 National Survey on Drug Use and 

Health: National Findings, at tbls. 1.34A, B (2006)). “On any 

given day, nearly one-third of black men in their twenties are 

under the supervision of the criminal justice system-either 

behind bars, on probation, or on parole.” Dorothy E. Roberts, 

The Social and Moral Cost of Mass Incarceration in African 

American Communities, 56 Stan. L.Rev. 1271, 1272 (2004); see 

also Carol A. Brook, Racial Disparity Under the Federal 

Sentencing Guidelines, 35 Litig., Fall 2008, at 1, 15. “African-
29

Americans alone make up almost 40 percent of the federal prison 

population, although they constitute only 13 percent of our 

country’s population.”).

This ballooning of the percentage of blacks incarcerated 

over the past 25 years directly corresponds with the disparate 

treatment of crack and powder cocaine. Marc Mauer, Racial Impact 

Statements as a Means of Reducing Unwarranted Sentencing

Disparities, 5 Ohio St. J. Crim. L. 19, 22-29 (2007) 

(attributing disparities in rates of black imprisonment in part 

to federal crack cocaine penalties). Originally the United 

States Sentencing Commission adopted a 100:1 statutory ratio in 

creating the guidelines. See United States Sentencing 

Commission, Special Report to the Congress: Cocaine and Federal 

Sentencing Policy at v (Feb. 1995). For example, the Act imposed 

a five-year minimum sentence for persons convicted of 

trafficking 5 grams of cocaine base or 500 grams of cocaine 

powder and a ten-year minimum sentence for trafficking 50 grams 

of cocaine base or 5,000 grams of cocaine powder.5

 5 In the Fair Sentencing Act of 2010, Congress lowered the 

100-to-1 sentencing disparity between crack cocaine and powder 

cocaine to a ratio of 18 to 1. Fair Sentencing Act of 2010, Pub. 

L. No. 111-220, 124 Stat. 2372 (2010).

However, as 

observed by the Supreme Court, unlike the sentencing guidelines 

as a whole, the Commission “did not use [an] empirical approach 
30

in developing the Guidelines sentences for drug-trafficking 

offenses.” Kimbrough v. United States, 552 U.S. 85, 96 (2007). 

As Judge Myron Bright stated, “[t]his lack of an empirical 

approach to the creation of guidelines for crack cocaine 

counsels against according controlling, or even significant, 

weight to the guidelines.” United States v. Brewer, 624 F.3d 

900, 912 (8th Cir. 2010) (Judge Bright, concurring in part and 

dissenting in part) (citing United States v. Dorvee, 616 F.3d 

174, 187-88 (2d Cir. 2010) (holding that deference to the 

Guidelines depends on the thoroughness of the Commission’s 

analysis and the validity of its reasoning)). See also Global 

Commission on Drug Policy, War on Drugs at 5 (June 2011) (“There 

is no excuse . . . for ignoring the evidence and experience 

accumulated since [the inception of the war on drugs]. Drug 

policies and strategies at all levels too often continue to be 

driven by ideological perspectives, or political convenience, 

and pay too little attention to the complexities of the drug 

market, drug use and drug addiction.”). 

To be sure, one of the fundamental flaws with mandatory 

minimum sentences is that the practice impedes district court 

judges from considering mitigating factors in sentencing in 

order to impose fair and just sentences. While it was thought 

that mandatory minimum sentences would reduce sentencing 

disparities, the opposite has come to fruition. Inconsistent 
31

application of mandatory minimums has only exacerbated 

disparities because they transfer sentencing power from district 

court judges to prosecutors, “who may pre-set punishment through 

creative investigative and charging practices, producing 

troubling punishment differentials among offenders with similar 

culpability.” Erik Luna & Paul Cassell, Mandatory Minimalism, 32 

Cardozo L. Rev. 1, 13 (2010).

Here, as in many other cases, the district court expressly 

noted its discontent with the statutory mandatory minimum 

sentence. This disapproval among distinguished jurists is not 

unusual. See, e.g., Anthony M. Kennedy, Speech at the American 

Bar Association Annual Meeting (Aug. 9, 2003) (available at

http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.asp

x?Filename=sp_ 08-09-03.html) (“By contrast to the guidelines, I 

can accept neither the necessity nor the wisdom of federal 

mandatory minimum sentences. In too many cases, mandatory 

minimum sentences are unwise and unjust.”); Debate, Mandatory 

Minimums in Drug Sentencing: A Valuable Weapon in the War on 

Drugs or a Handcuff on Judicial Discretion?, 36 Am. Crim. L. 

Rev. 1279, 1284-85 (1999) (debate between Rep. Asa Hutchinson 

and U.S. District Court Judge Stanley Sporkin). See also John S. 

Martin, Jr., Why Mandatory Minimums Make No Sense, 18 Notre Dame 

J.L. Ethics & Pub. Pol’y 311 (2004); Jack B. Weinstein, Every 

Day is a Good Day for a Judge to Lay Down his Professional Life 
32

for Justice, 32 Fordham Urb. L. J. 131 (2004); Gerard E. Lynch, 

Sentencing Eddie, 91 J. Crim. L. & Criminology 547 (2001). Even 

the U.S. drug czar, a position created by the Anti-Drug Abuse 

Act of 1988, admits the war on drugs is failing, stating that 

after 40 years and $1 trillion, “it has not been successful . . 

. the concern about drugs and drug problems is, if anything, 

magnified, intensified.” Martha Mendoza, After 40 Years and $1 

Trillion, Drug Use Is Rampant and Violence Pervasive, Associated 

Press, May 13, 2010.

C.

I share the district judge’s dismay over the legallymandated sentence he must impose in this case.6

 6 The district judge, a veteran of twenty-five years’ 

service on the federal trial bench (and before that a highlyrespected federal prosecutor) addressed the Appellant as follows 

at the original sentencing hearing in response to Gregg’s 

protestation that a sentence of life without parole was unjust:

While the 

Well, for the record, Mr. Gregg, I will tell you 

that I agree with you wholeheartedly. I think a life 

sentence for what you have done in this case is 

ridiculous. It is a travesty. I don't have any 

discretion about it. The government, obviously you 

irritated them in some way and they reached back to 

these 1996 possession and possession with intent[,] to 

do this, which under the law they have the right to 

do. I don't agree with it, either. And I want the 

world and the record to be clear on that. This is just 

silly. But as I say, I don't have any choice.

J.A. 311.

(Continued)
33

controlling legal principles require us to order the 

reimposition of a sentence of life without parole in this case, 

the time has long passed when policymakers should come to 

 

As discussed in text at pp. 30-31, the district court’s 

sentiments are shared by a wide swath of trial and appellate 

federal judges. To take just one reported example, Sixth Circuit 

Judge Gilbert Merritt, sitting by designation in the First 

Circuit, expressed similar, long-standing frustrations in a case 

in which the government filed a § 851 information to require the 

district court to impose a twenty-year minimum sentence. Judge 

Merritt spoke for many federal judges when he wrote:

I agree with the District Court that the 

prosecution's decision to seek a mandatory sentence of 

20 years under 21 U.S.C. § 851 passes all 

understanding. The District Court said: “I recognize 

you [AUSA] do this at the behest of your superiors. 

But I can’t sit here today and impose this sentence 

without saying it’s wrong, and you can take that 

message to whoever you think might listen.” The 

Judicial Conference of the United States for almost 20 

years, and the Sentencing Commission for almost 10 

years, have pleaded with the judiciary committees of 

Congress to do something about the serious injustices 

that these long, mandatory minimum sentences impose-to 

no avail. This is a 20-year sentence for a nonviolent 

crime by a defendant with a serious mental illness. 

His incarceration will cost the American taxpayers in 

today’s dollars somewhere between $600,000 and 

$1,000,000. With some carefully monitored 

rehabilitation treatment, it is possible that he could 

be released in just a few years. Like the District 

Judge, I think that the prosecution’s purely 

discretionary decision to ratchet up this sentence to 

20 years is misguided and ought to be reconsidered 

when the judgment becomes final.

United States v. Gonzalez-Ramirez, 561 F.3d 22, 31 (1st 

Cir.), cert. denied, 130 S.Ct. 524 (2009) (Merritt, J., 

concurring) (bracket in original).
34

acknowledge the nation’s failed drug policy and to act on that 

acknowledgement. 

As a nation, we are smart enough to do better.