II 

111TH CONGRESS 

1ST SESSION S. 1789 

To restore fairness to Federal cocaine sentencing. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 15, 2009 

Mr. DURBIN (for himself, Mr. LEAHY, Mr. SPECTER, Mr. FEINGOLD, Mr. 

CARDIN, Mr. WHITEHOUSE, Mr. KAUFMAN, Mr. FRANKEN, Mr. DODD, 

Mr. KERRY, and Mr. LEVIN) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To restore fairness to Federal cocaine sentencing. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Sentencing Act 

5 of 2009’’. 

6 SEC. 2. COCAINE SENTENCING DISPARITY ELIMINATION. 

7 (a) CSA.—Section 401(b)(1) of the Controlled Sub8 stances Act (21 U.S.C. 841(b)(1)) is amended— 

9 (1) in subparagraph (A)(iii), by striking ‘‘50 

10 grams’’ and inserting ‘‘5 kilograms’’; and 


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1 (2) in subparagraph (B)(iii), by striking ‘‘5 

2 grams’’ and inserting ‘‘500 grams’’. 

3 (b) IMPORT AND EXPORT ACT.—Section 1010(b) of 

4 the Controlled Substances Import and Export Act (21 

5 U.S.C. 960(b)) is amended— 

6 (1) in paragraph (1)(C), by striking ‘‘50 

7 grams’’ and inserting ‘‘5 kilograms’’; and 

8 (2) in paragraph (2)(C), by striking ‘‘5 grams’’ 

9 and inserting ‘‘500 grams’’. 

10 SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE 

11 FOR SIMPLE POSSESSION. 

12 Section 404(a) of the Controlled Substances Act (21 

13 U.S.C. 844(a)) is amended by striking the sentence begin14 ning ‘‘Notwithstanding the preceding sentence,’’. 

15 SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG TRAF16 FICKERS. 

17 (a) INCREASED PENALTIES FOR MANUFACTURE, 

18 DISTRIBUTION, DISPENSATION, OR POSSESSION WITH IN19 TENT TO MANUFACTURE, DISTRIBUTE, OR DISPENSE.— 

20 Section 401(b)(1) of the Controlled Substances Act (21 

21 U.S.C. 841(b)) is amended— 

22 (1) in subparagraph (A), by striking 

23 ‘‘$4,000,000’’, ‘‘$10,000,000’’, ‘‘$8,000,000’’, and 

24 ‘‘$20,000,000’’ and inserting ‘‘$10,000,000’’, 


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1 ‘‘$50,000,000’’, ‘‘$20,000,000’’, and ‘‘$75,000,000’’, 

2 respectively; and 

3 (2) in subparagraph (B), by striking 

4 ‘‘$2,000,000’’, ‘‘$5,000,000’’, ‘‘$4,000,000’’, and 

5 ‘‘$10,000,000’’ and inserting ‘‘$5,000,000’’, 

6 ‘‘$25,000,000’’, ‘‘$8,000,000’’, and ‘‘$50,000,000’’, 

7 respectively. 

8 (b) INCREASED PENALTIES FOR IMPORTATION AND

9 EXPORTATION.—Section 1010(b) of the Controlled Sub10 stances Import and Export Act (21 U.S.C. 960(b)) is 

11 amended— 

12 (1) in paragraph (1), by striking ‘‘$4,000,000’’, 

13 ‘‘$10,000,000’’, ‘‘$8,000,000’’, and ‘‘$20,000,000’’ 

14 and inserting ‘‘$10,000,000’’, ‘‘$50,000,000’’, 

15 ‘‘$20,000,000’’, and ‘‘$75,000,000’’, respectively, 

16 and 

17 (2) in paragraph (2), by striking ‘‘$2,000,000’’, 

18 ‘‘$5,000,000’’, ‘‘$4,000,000’’, and ‘‘$10,000,000’’ 

19 and inserting ‘‘$5,000,000’’, ‘‘$25,000,000’’, 

20 ‘‘$8,000,000’’, and ‘‘$50,000,000’’, respectively. 

21 SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING 

22 THE COURSE OF A DRUG TRAFFICKING OF23 FENSE. 

24 Pursuant to its authority under section 994 of title 

25 28, United States Code, the United States Sentencing 


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1 Commission shall review and, if appropriate, amend the 

2 sentencing guidelines to ensure that the penalties for an 

3 offense involving trafficking of a controlled substance pro4 vide tiered enhancements for the involvement of a dan5 gerous weapon or violence, including, if appropriate— 

6 (1) an enhancement for the use or brandishing 

7 of a firearm or other dangerous weapon; 

8 (2) an enhancement for the use, or threatened 

9 use, of violence; and 

10 (3) any other enhancement in this respect that 

11 the Commission considers necessary. 

12 SEC. 6. INCREASED EMPHASIS ON DEFENDANT’S ROLE AND 

13 CERTAIN AGGRAVATING FACTORS. 

14 Pursuant to its authority under section 994 of title 

15 28, United States Code, the United States Sentencing 

16 Commission shall review and, if appropriate, amend the 

17 sentencing guidelines to ensure that the penalties for an 

18 offense involving trafficking of a controlled substance ade19 quately take into account the culpability of the defendant 

20 and the role of the defendant in the offense, including con21 sideration of whether enhancements should be added, or 

22 existing enhancements should be increased, for the fol23 lowing aggravating factors associated with the offense: 


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1 (1) The defendant committed the offense as 

2 part of a pattern of criminal conduct engaged in as 

3 a livelihood. 

4 (2) The defendant is an organizer, manager, su5 pervisor, or leader of drug trafficking activities. 

6 (3) The defendant maintained an establishment 

7 for the manufacture or distribution of the controlled 

8 substance. 

9 (4) The defendant distributed a controlled sub10 stance to an individual under the age of 21 years or 

11 over the age of 64 years, or to a pregnant individual. 

12 (5) The defendant involved an individual under 

13 the age of 21 years or over the age of 64 years, or 

14 a pregnant individual, in the offense. 

15 (6) The defendant distributed a controlled sub16 stance to an individual who was unusually vulnerable 

17 due to physical or mental condition, or who was par18 ticularly susceptible to criminal conduct. 

19 (7) The defendant involved an individual who 

20 was unusually vulnerable due to physical or mental 

21 condition, or who was particularly susceptible to 

22 criminal conduct. 

23 (8) The defendant used threats, coercion, or in24 timidation to involve an individual in the offense. 


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1 (9) The defendant manufactured or distributed 

2 the controlled substance in a location described in 

3 section 416(a) or section 419(a) of the Controlled 

4 Substances Act (21 U.S.C. 856(a) or 860(a)). 

5 (10) The defendant bribed, or attempted to 

6 bribe, a Federal, State, or local law enforcement of7 ficer in connection with the offense. 

8 (11) The defendant was involved in importation 

9 into the United States of a controlled substance. 

10 (12) Bodily injury or death occurred in connec11 tion with the offense. 

12 (13) The defendant used another person to pur13 chase, sell, transport, or store controlled substances 

14 and used impulse, fear, friendship, affection, or 

15 some combination thereof to involve such person in 

16 the offense when such person had a minimum knowl17 edge of the illegal enterprise and was to receive little 

18 or no compensation from the illegal transaction. 

19 (14) The defendant engaged in witness intimi20 dation, tampered, or destroyed evidence, or other21 wise obstructed justice in conjunction with the inves22 tigation or prosecution of the offense. 

23 (15) Any other factor the Commission considers 

24 necessary. 


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1 SEC. 7. INCREASED EMPHASIS ON CERTAIN MITIGATING 

2 FACTORS. 

3 Pursuant to its authority under section 994 of title 

4 28, United States Code, the United States Sentencing 

5 Commission shall review and, if appropriate, amend the 

6 sentencing guidelines to ensure that the penalties for an 

7 offense involving trafficking of a controlled substance ade8 quately take into account mitigating factors associated 

9 with the offense, including— 

10 (1) whether the defendant had minimum knowl11 edge of the illegal enterprise; 

12 (2) whether the defendant received little or no 

13 compensation in connection with the offense; 

14 (3) whether the defendant acted on impulse, 

15 fear, friendship, or affection when the defendant was 

16 otherwise unlikely to commit such an offense; and 

17 (4) whether any maximum base offense level 

18 should be established for a defendant who qualifies 

19 for a mitigating role adjustment. 

20 SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SEN21 TENCING COMMISSION. 

22 (a) IN GENERAL.—The United States Sentencing 

23 Commission, in its discretion, may— 

24 (1) promulgate amendments pursuant to the di25 rectives in this Act in accordance with the procedure 

26 set forth in section 21(a) of the Sentencing Act of 


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1 1987 (Public Law 100–182), as though the author2 ity under that Act had not expired; and 

3 (2) pursuant to the emergency authority pro4 vided in paragraph (1), make such conforming 

5 amendments to the Sentencing Guidelines as the 

6 Commission determines necessary to achieve consist7 ency with other guideline provisions and applicable 

8 law. 

9 (b) PROMULGATION.—The Commission shall promul10 gate any amendments under subsection (a) promptly so 

11 that the amendments take effect on the same date as the 

12 amendments made by this Act. 

13 SEC. 9. REPORT ON EFFECTIVENESS OF DRUG COURTS. 

14 (a) IN GENERAL.—Not later than 1 year after the 

15 date of enactment of this Act, the Comptroller General 

16 of the United States shall prepare a report analyzing the 

17 effectiveness of drug court programs receiving funds from 

18 the Drug Court Discretionary Grant Program of the 

19 United States Department of Justice’s Office of Justice 

20 Programs. 

21 (b) FOCUS.—The report required by subsection (a) 

22 shall— 

23 (1) assess the Department of Justice’s efforts 

24 to collect data on the performance of federally fund25 ed drug courts; 


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1 (2) address the effect of drug courts on recidi2 vism and substance abuse rates; 

3 (3) address any cost benefits resulting from the 

4 use of drug courts as alternatives to incarceration; 

5 (4) assess the Department of Justice’s response 

6 to previous recommendations made by the Comp7 troller General regarding drug court programs; and 

8 (5) make recommendations concerning the per9 formance, impact, and cost-effectiveness of federally 

10 funded drug court programs. 

Æ 


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