II 

Calendar No. 316 

111TH CONGRESS 

2D 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, Mr. LEVIN, Mr. BROWN of Ohio, Mr. SANDERS, Mr. 

BURRIS, Mr. HARKIN, Mr. WEBB, Mr. GRASSLEY, and Mrs. FEINSTEIN) 

introduced the following bill; which was read twice and referred to the 

Committee on the Judiciary 

MARCH 15, 2010 

Reported by Mr. LEAHY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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’’. 


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1 SEC. 2. COCAINE SENTENCING DISPARITY ELIMINATION. 

2 (a) CSA.—Section 401(b)(1) of the Controlled Sub3 stances Act (21 U.S.C. 841(b)(1)) is amended— 

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

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

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

7 grams’’ and inserting ‘‘500 grams’’. 

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

9 the Controlled Substances Import and Export Act (21 

10 U.S.C. 960(b)) is amended— 

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

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

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

14 and inserting ‘‘500 grams’’. 

15 SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE 

16 FOR SIMPLE POSSESSION. 

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

18 U.S.C. 844(a)) is amended by striking the sentence begin19 ning ‘‘Notwithstanding the preceding sentence,’’. 

20 SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG TRAF21 FICKERS. 

22 (a) INCREASED PENALTIES FOR MANUFACTURE, 

23 DISTRIBUTION, DISPENSATION, OR POSSESSION WITH IN24 TENT TO MANUFACTURE, DISTRIBUTE, OR DISPENSE.— 

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

26 U.S.C. 841(b)) is amended— 


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

2 ‘‘$4,000,000’’, ‘‘$10,000,000’’, ‘‘$8,000,000’’, and 

3 ‘‘$20,000,000’’ and inserting ‘‘$10,000,000’’, 

4 ‘‘$50,000,000’’, ‘‘$20,000,000’’, and ‘‘$75,000,000’’, 

5 respectively; and 

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

7 ‘‘$2,000,000’’, ‘‘$5,000,000’’, ‘‘$4,000,000’’, and 

8 ‘‘$10,000,000’’ and inserting ‘‘$5,000,000’’, 

9 ‘‘$25,000,000’’, ‘‘$8,000,000’’, and ‘‘$50,000,000’’, 

10 respectively. 

11 (b) INCREASED PENALTIES FOR IMPORTATION AND

12 EXPORTATION.—Section 1010(b) of the Controlled Sub13 stances Import and Export Act (21 U.S.C. 960(b)) is 

14 amended— 

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

16 ‘‘$10,000,000’’, ‘‘$8,000,000’’, and ‘‘$20,000,000’’ 

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

18 ‘‘$20,000,000’’, and ‘‘$75,000,000’’, respectively, 

19 and 

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

21 ‘‘$5,000,000’’, ‘‘$4,000,000’’, and ‘‘$10,000,000’’ 

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

23 ‘‘$8,000,000’’, and ‘‘$50,000,000’’, respectively. 


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1 SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING 

2 THE COURSE OF A DRUG TRAFFICKING OF3 FENSE. 

4 Pursuant to its authority under section 994 of title 

5 28, United States Code, the United States Sentencing 

6 Commission shall review and, if appropriate, amend the 

7 sentencing guidelines to ensure that the penalties for an 

8 offense involving trafficking of a controlled substance pro9 vide tiered enhancements for the involvement of a dan10 gerous weapon or violence, including, if appropriate— 

11 (1) an enhancement for the use or brandishing 

12 of a firearm or other dangerous weapon; 

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

14 use, of violence; and 

15 (3) any other enhancement in this respect that 

16 the Commission considers necessary. 

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

18 CERTAIN AGGRAVATING FACTORS. 

19 Pursuant to its authority under section 994 of title 

20 28, United States Code, the United States Sentencing 

21 Commission shall review and, if appropriate, amend the 

22 sentencing guidelines to ensure that the penalties for an 

23 offense involving trafficking of a controlled substance ade24 quately take into account the culpability of the defendant 

25 and the role of the defendant in the offense, including con26 sideration of whether enhancements should be added, or 


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1 existing enhancements should be increased, for the fol2 lowing aggravating factors associated with the offense: 

3 (1) The defendant committed the offense as 

4 part of a pattern of criminal conduct engaged in as 

5 a livelihood. 

6 (2) The defendant is an organizer, manager, su7 pervisor, or leader of drug trafficking activities. 

8 (3) The defendant maintained an establishment 

9 for the manufacture or distribution of the controlled 

10 substance. 

11 (4) The defendant distributed a controlled sub12 stance to an individual under the age of 21 years or 

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

14 (5) The defendant involved an individual under 

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

16 a pregnant individual, in the offense. 

17 (6) The defendant distributed a controlled sub18 stance to an individual who was unusually vulnerable 

19 due to physical or mental condition, or who was par20 ticularly susceptible to criminal conduct. 

21 (7) The defendant involved an individual who 

22 was unusually vulnerable due to physical or mental 

23 condition, or who was particularly susceptible to 

24 criminal conduct. 


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1 (8) The defendant used threats, coercion, or in2 timidation to involve an individual in the offense. 

3 (9) The defendant manufactured or distributed 

4 the controlled substance in a location described in 

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

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

7 (10) The defendant bribed, or attempted to 

8 bribe, a Federal, State, or local law enforcement of9 ficer in connection with the offense. 

10 (11) The defendant was involved in importation 

11 into the United States of a controlled substance. 

12 (12) Bodily injury or death occurred in connec13 tion with the offense. 

14 (13) The defendant used another person to pur15 chase, sell, transport, or store controlled substances 

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

17 some combination thereof to involve such person in 

18 the offense when such person had a minimum knowl19 edge of the illegal enterprise and was to receive little 

20 or no compensation from the illegal transaction. 

21 (14) The defendant engaged in witness intimi22 dation, tampered, or destroyed evidence, or other23 wise obstructed justice in conjunction with the inves24 tigation or prosecution of the offense. 


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1 (15) Any other factor the Commission considers 

2 necessary. 

3 SEC. 7. INCREASED EMPHASIS ON CERTAIN MITIGATING 

4 FACTORS. 

5 Pursuant to its authority under section 994 of title 

6 28, United States Code, the United States Sentencing 

7 Commission shall review and, if appropriate, amend the 

8 sentencing guidelines to ensure that the penalties for an 

9 offense involving trafficking of a controlled substance ade10 quately take into account mitigating factors associated 

11 with the offense, including— 

12 (1) whether the defendant had minimum knowl13 edge of the illegal enterprise; 

14 (2) whether the defendant received little or no 

15 compensation in connection with the offense; 

16 (3) whether the defendant acted on impulse, 

17 fear, friendship, or affection when the defendant was 

18 otherwise unlikely to commit such an offense; and 

19 (4) whether any maximum base offense level 

20 should be established for a defendant who qualifies 

21 for a mitigating role adjustment. 

22 SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SEN23 TENCING COMMISSION. 

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

25 Commission, in its discretion, may— 


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1 (1) promulgate amendments pursuant to the di2 rectives in this Act in accordance with the procedure 

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

4 1987 (Public Law 100–182), as though the author5 ity under that Act had not expired; and 

6 (2) pursuant to the emergency authority pro7 vided in paragraph (1), make such conforming 

8 amendments to the Sentencing Guidelines as the 

9 Commission determines necessary to achieve consist10 ency with other guideline provisions and applicable 

11 law. 

12 (b) PROMULGATION.—The Commission shall promul13 gate any amendments under subsection (a) promptly so 

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

15 amendments made by this Act. 

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

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

18 date of enactment of this Act, the Comptroller General 

19 of the United States shall prepare a report analyzing the 

20 effectiveness of drug court programs receiving funds from 

21 the Drug Court Discretionary Grant Program of the 

22 United States Department of Justice’s Office of Justice 

23 Programs. 

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

25 shall— 


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

2 to collect data on the performance of federally fund3 ed drug courts; 

4 (2) address the effect of drug courts on recidi5 vism and substance abuse rates; 

6 (3) address any cost benefits resulting from the 

7 use of drug courts as alternatives to incarceration; 

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

9 to previous recommendations made by the Comp10 troller General regarding drug court programs; and 

11 (5) make recommendations concerning the per12 formance, impact, and cost-effectiveness of federally 

13 funded drug court programs. 

14 SECTION 1. SHORT TITLE. 

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

16 of 2010’’. 

17 SEC. 2. COCAINE SENTENCING DISPARITY REDUCTION. 

18 (a) CSA.—Section 401(b)(1) of the Controlled Sub19 stances Act (21 U.S.C. 841(b)(1)) is amended— 

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

21 grams’’ and inserting ‘‘280 grams’’; and 

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

23 grams’’ and inserting ‘‘28 grams’’. 


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

2 Controlled Substances Import and Export Act (21 U.S.C. 

3 960(b)) is amended— 

4 (1) in paragraph (1)(C), by striking ‘‘50 grams’’ 

5 and inserting ‘‘280 grams’’; and 

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

7 and inserting ‘‘28 grams’’. 

8 SEC. 3. ELIMINATION OF MANDATORY MINIMUM SENTENCE 

9 FOR SIMPLE POSSESSION. 

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

11 U.S.C. 844(a)) is amended by striking the sentence begin12 ning ‘‘Notwithstanding the preceding sentence,’’. 

13 SEC. 4. INCREASED PENALTIES FOR MAJOR DRUG TRAF14 FICKERS. 

15 (a) INCREASED PENALTIES FOR MANUFACTURE, DIS16 TRIBUTION, DISPENSATION, OR POSSESSION WITH INTENT

17 TO MANUFACTURE, DISTRIBUTE, OR DISPENSE.—Section 

18 401(b)(1) of the Controlled Substances Act (21 U.S.C. 

19 841(b)) is amended— 

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

21 ‘‘$4,000,000’’, ‘‘$10,000,000’’, ‘‘$8,000,000’’, and 

22 ‘‘$20,000,000’’ and inserting ‘‘$10,000,000’’, 

23 ‘‘$50,000,000’’, ‘‘$20,000,000’’, and ‘‘$75,000,000’’, re24 spectively; and 


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

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

3 ‘‘$10,000,000’’ and inserting ‘‘$5,000,000’’, 

4 ‘‘$25,000,000’’, ‘‘$8,000,000’’, and ‘‘$50,000,000’’, re5 spectively. 

6 (b) INCREASED PENALTIES FOR IMPORTATION AND

7 EXPORTATION.—Section 1010(b) of the Controlled Sub8 stances Import and Export Act (21 U.S.C. 960(b)) is 

9 amended— 

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

11 ‘‘$10,000,000’’, ‘‘$8,000,000’’, and ‘‘$20,000,000’’ and 

12 inserting ‘‘$10,000,000’’, ‘‘$50,000,000’’, 

13 ‘‘$20,000,000’’, and ‘‘$75,000,000’’, respectively; and 

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

15 ‘‘$5,000,000’’, ‘‘$4,000,000’’, and ‘‘$10,000,000’’ and 

16 inserting ‘‘$5,000,000’’, ‘‘$25,000,000’’, ‘‘$8,000,000’’, 

17 and ‘‘$50,000,000’’, respectively. 

18 SEC. 5. ENHANCEMENTS FOR ACTS OF VIOLENCE DURING 

19 THE COURSE OF A DRUG TRAFFICKING OF20 FENSE. 

21 Pursuant to its authority under section 994 of title 

22 28, United States Code, the United States Sentencing Com23 mission shall review and amend the Federal sentencing 

24 guidelines to ensure that the guidelines provide an addi25 tional penalty increase of at least 2 offense levels if the deVerDate Nov 24 2008 00:38 Mar 16, 2010 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S1789.RS S1789

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1 fendant used violence, made a credible threat to use violence, 

2 or directed the use of violence during a drug trafficking of3 fense. 

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

5 CERTAIN AGGRAVATING FACTORS. 

6 Pursuant to its authority under section 994 of title 

7 28, United States Code, the United States Sentencing Com8 mission shall review and amend the Federal sentencing 

9 guidelines to ensure an additional increase of at least 2 of10 fense levels if— 

11 (1) the defendant bribed, or attempted to bribe, 

12 a Federal, State, or local law enforcement official in 

13 connection with a drug trafficking offense; 

14 (2) the defendant maintained an establishment 

15 for the manufacture or distribution of a controlled 

16 substance, as generally described in section 416 of the 

17 Controlled Substances Act (21 U.S.C. 856); or 

18 (3)(A) the defendant is an organizer, leader, 

19 manager, or supervisor of drug trafficking activity 

20 subject to an aggravating role enhancement under the 

21 guidelines; and 

22 (B) the offense involved 1 or more of the fol23 lowing super-aggravating factors: 

24 (i) The defendant— 


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1 (I) used another person to purchase, 

2 sell, transport, or store controlled sub3 stances; 

4 (II) used impulse, fear, friendship, af5 fection, or some combination thereof to in6 volve such person in the offense; and 

7 (III) such person had a minimum 

8 knowledge of the illegal enterprise and was 

9 to receive little or no compensation from the 

10 illegal transaction. 

11 (ii) The defendant— 

12 (I) knowingly distributed a controlled 

13 substance to a person under the age of 18 

14 years, a person over the age of 64 years, or 

15 a pregnant individual; 

16 (II) knowingly involved a person under 

17 the age of 18 years, a person over the age 

18 of 64 years, or a pregnant individual in 

19 drug trafficking; 

20 (III) knowingly distributed a con21 trolled substance to an individual who was 

22 unusually vulnerable due to physical or 

23 mental condition, or who was particularly 

24 susceptible to criminal conduct; or 


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1 (IV) knowingly involved an individual 

2 who was unusually vulnerable due to phys3 ical or mental condition, or who was par4 ticularly susceptible to criminal conduct, in 

5 the offense. 

6 (iii) The defendant was involved in the im7 portation into the United States of a controlled 

8 substance. 

9 (iv) The defendant engaged in witness in10 timidation, tampered with or destroyed evidence, 

11 or otherwise obstructed justice in connection with 

12 the investigation or prosecution of the offense. 

13 (v) The defendant committed the drug traf14 ficking offense as part of a pattern of criminal 

15 conduct engaged in as a livelihood. 

16 SEC. 7. INCREASED EMPHASIS ON DEFENDANT’S ROLE AND 

17 CERTAIN MITIGATING FACTORS. 

18 Pursuant to its authority under section 994 of title 

19 28, United States Code, the United States Sentencing Com20 mission shall review and amend the Federal sentencing 

21 guidelines and policy statements to ensure that— 

22 (1) if the defendant is subject to a minimal role 

23 adjustment under the guidelines, the base offense level 

24 for the defendant based solely on drug quantity shall 

25 not exceed level 32; and 


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1 (2) there is an additional reduction of 2 offense 

2 levels if the defendant— 

3 (A) otherwise qualifies for a minimal role 

4 adjustment under the guidelines and had a min5 imum knowledge of the illegal enterprise; 

6 (B) was to receive no monetary compensa7 tion from the illegal transaction; and 

8 (C) was motivated by an intimate or famil9 ial relationship or by threats or fear when the 

10 defendant was otherwise unlikely to commit such 

11 an offense. 

12 SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SEN13 TENCING COMMISSION. 

14 The United States Sentencing Commission shall— 

15 (1) promulgate the guidelines, policy statements, 

16 or amendments provided for in this Act as soon as 

17 practicable, and in any event not later than 90 days 

18 after the date of enactment of this Act, in accordance 

19 with the procedure set forth in section 21(a) of the 

20 Sentencing Act of 1987 (28 U.S.C. 994 note), as 

21 though the authority under that Act had not expired; 

22 and 

23 (2) pursuant to the emergency authority pro24 vided under paragraph (1), make such conforming 

25 amendments to the Federal sentencing guidelines as 


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1 the Commission determines necessary to achieve con2 sistency with other guideline provisions and applica3 ble law. 

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

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

6 of enactment of this Act, the Comptroller General of the 

7 United States shall submit to Congress a report analyzing 

8 the effectiveness of drug court programs receiving funds 

9 under the drug court grant program under part EE of title 

10 I of the Omnibus Crime Control and Safe Streets Act of 

11 1968 (42 U.S.C. 3797–u et seq.). 

12 (b) CONTENTS.—The report submitted under sub13 section (a) shall— 

14 (1) assess the efforts of the Department of Justice 

15 to collect data on the performance of federally funded 

16 drug courts; 

17 (2) address the effect of drug courts on recidi18 vism and substance abuse rates; 

19 (3) address any cost benefits resulting from the 

20 use of drug courts as alternatives to incarceration; 

21 (4) assess the response of the Department of Jus22 tice to previous recommendations made by the Comp23 troller General regarding drug court programs; and 


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1 (5) make recommendations concerning the per2 formance, impact, and cost-effectiveness of federally 

3 funded drug court programs. 

4 SEC. 10. UNITED STATES SENTENCING COMMISSION RE5 PORT ON IMPACT OF CHANGES TO FEDERAL 

6 COCAINE SENTENCING LAW. 

7 Not later than 5 years after the date of enactment of 

8 this Act, the United States Sentencing Commission, pursu9 ant to the authority under sections 994 and 995 of title 

10 28, United States Code, and the responsibility of the United 

11 States Sentencing Commission to advise Congress on sen12 tencing policy under section 995(a)(20) of title 28, United 

13 States Code, shall study and submit to Congress a report 

14 regarding the impact of the changes in Federal sentencing 

15 law under this Act and the amendments made by this Act. 


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Calendar No. 316 

111TH CONGRESS 

2D SESSION S. 1789 

A BILL 

To restore fairness to Federal cocaine sentencing. 

MARCH 15, 2010 

Reported with an amendment 


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