* Judge Owen joins only Part III.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10424

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CLARENCE ROBINSON

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before REAVLEY, STEWART, and OWEN *, Circuit Judges.

REAVLEY, Circuit Judge:

Before us is Clarence Robinson’s request for counsel to represent him in

his appeal. Robinson had filed a motion on his own behalf in district court to

take advantage ofthe retroactive amendment to the Sentencing Guidelines that

provides federal prisoners convicted of crack-cocaine offenses the possibility of

receiving a sentence reduction. The court granted the motion and reduced

Robinson’s 180-month sentence by 5 months. We grant the request for counsel

in the interest of justice. 

I.

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2008

Charles R. Fulbruge III

Clerk
No. 08-10424

1 William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing

Policy, 38 ARIZ. L. REV. 1233, 1243–44 (1996) (“[B]y the early 1980s, crack use had exploded,

spreading to major cities throughout the country. Drug experts agree that the crack epidemic

that hit the United States during the 1980s was a broad-based phenomenon that

simultaneously arose in several cities and was driven by drug dealers of different nationalities,

races and ethnic groups.” (footnotes omitted)) [hereinafter Spade]. 

2

Id. at 1251 n.118 (quoting 132 CONG. REC. 26,447) (1986)). 

3

Id. at 1249–56 (discussing the 1986 Act and its expedited trip through Congress). 

4 United States v. Gunter, 462 F.3d 237, 240 n.3 (3d Cir. 2006) (explaining that powder

cocaine is converted back into its base form as “crack” by cooking it with baking soda and

water).

5 Spade, supra note 1, at 1252–55 (footnotes omitted) (summarizing the 1986 Act’s

legislative history and also noting that “[r]ead as a whole, the abbreviated legislative history

of the 1986 Act does not provide a single, consistently cited rationale for the crack-powder

penalty structure”). 

2

In the 1980s, crack cocaine burst onto the drug scene, resulting in an

epidemic that engulfed large portions of the country.1 Senator Lawton Chiles

remarked in 1986 that “[t]he whole Nation now knows about crack cocaine.

They know it can be bought for the price of a cassette tape[] and make people

into slaves. It can turn promising young people into robbers and thieves,

stealing anything they can to get the money to feed their habit.”2 To quickly

combat this plague, Congress rushed to pass the Anti-Drug Abuse Act of 1986,

which mandated harsh sentences for crack offenses.3 Congress also made the

decision to draw a dramatic sentencing distinction between powder-cocaine and

crack-cocaine offenses. Although crack and powder cocaine are chemically the

same,4various members of Congress believed that “crack is more addictive than

powder cocaine”;“thatit causes crime”;“thatit has perilous physiological effects

such as psychosis and death”; “that young people are particularly prone to

becoming addicted to it”; and “that crack’s low cost per dose and ease of

manufacture would lead to even more widespread use of it.”5 As a result,

Congress determined that 1 gram of crack would be considered equivalentto 100

grams of powder cocaine for purposes of applying the 1986 Act’s mandatory
No. 08-10424

6 See id. at 1252.

7 21 U.S.C. § 841(b).

8 Spade, supra note 1, at 1252.

9 United States v. Clary, 846 F.Supp. 768, 784 (E.D. Mo. 1994) (holding that the 100:1

ratio violated the constitutional guarantee of equal protection of the law because of its

disproportionate impact on African-Americans) (internal quotation marks omitted), rev’d, 34

F.3d 709 (8th Cir. 1994). 

10 Kimbrough v. United States, 128 S. Ct. 558, 567 (2007). 

11 Id.

12 Id.

3

minimum penalties.6 While possession of 5 grams of crack would result in a fiveyear mandatory minimum sentence, it took 500 grams of powder cocaine for the

same penalty.7 The 1986 Act’s legislative history contains “no discussion of the

100:1 ratio.”8It was selected, however, after Congress decided to double the 50:1

ratio found in an earlier version of the legislation to “symbolize redoubled

Congressional seriousness” on the issue.9

Meanwhile, the newly created Sentencing Commission was tackling the

issue of creating the Sentencing Guidelines. While most of the Guidelines were

created “using an empirical approach based on data about past sentencing

practices,” the Commission decided to create Guidelines for drug offenses by

using the 1986 Act’s weight-driven scheme.10 Thus, the offense level for a

particular drug offense was tethered to the type of drug and drug weight.11 In

determining the offense level for the possession or sale of crack and powder

cocaine,the Commission simply repeated the 100:1 ratio found in the 1986 Act.12

Over the next two decades the 100:1 ratio was subjected to constant

criticism, as commentators argued that the ratio was unjustified and the product

of a severe overreaction, as the crack epidemic had not turned into the
No. 08-10424

13 See, e.g., U.S. SENTENCING COMM’N, SPECIAL REPORT TO CONGRESS: COCAINE AND

FEDERAL SENTENCING POLICY 2 (2007) (“Federal cocaine sentencing policy, insofar as it

provides substantially heightened penalties for crackcocaine offenses, continues to comeunder

almost universal criticism from representatives of the Judiciary, criminal justice practioners,

academics, and community interest groups, and inaction in this area is of increasing concern

to many, including the Commission.”) [hereinafter 2007 Report]; Steven L. Chanenson &

Douglas A. Berman, Federal Cocaine Sentencing in Transition, 19 FED. SEN’G REP. 291, 294

(2007) (“[C]urrentfederal cocaine sentencing policy has a corrosive effect on both the American

criminal justice system and our society at large. Congress should and must do better, for vital

symbolic reasons as well as substantive ones.”); Spade, supra note 1, at 1271–75, 1279–82

(discussing the ineffectiveness of the 100:1 ratio; cataloguing the widespread opposition to the

ratio, which included numerous federal judges; and noting that at least one federal judge

resigned from the bench rather than continue to sentence defendants using the 100:1 ratio);

Jesseca R.F. Grassley, Federal Cocaine Sentencing Policy Following the 1995 Cocaine Report:

Issues of Fairness and Just Punishment, 21 HAMLINE L. REV. 347, 380 (1998) (“[T]housands

of crack cocaine defendants continue to be sentenced under [the 100:1] ratio each year despite

the existence of conclusive and credible evidence that its application results in unfair

sentences.”) (footnote omitted)). 

14 Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg.

25074, 25075–77 (1995) [hereinafter 1995 Amendments]; see also U.S. SENTENCING COMM’N,

SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (1995) (detailing

the findings of the Commission). 

15 See H.R. Rep. No. 104–272, at 3–4 (1995), reprinted in 1995 U.S.C.C.A.N. 335, 337

(noting that the refusal to change the 100:1 ratio was based on the fact that “the evidence

overwhelmingly demonstrates significant distinctions between crack and powder cocaine”). 

16 See generally 2007 Report, supra note 11. 

17 Id.

4

cataclysmic event many had feared.13 The Sentencing Commission itself

eventually led the charge to change the ratio. Beginning in 1995, the

Commission determined that the ratio was not defensible, and it proposed an

amendment to the Guidelines that would implement a 1:1 ratio.14 Congress

rejected the amendment.15

The Commission issued its fourth report on the 100:1 ratio in 2007.16 It

repeated its criticism ofthe ratio and the assumption about crack versus powder

cocaine.17 The Commission then proposed an amendment to the Guidelines that

would provide for a two level reduction for all crack offenses; and after Congress

chose not to veto the amendment, the two-level reduction went into effect on
No. 08-10424

18 Kimbrough, 128 S. Ct. at 569.

19 Id. (quoting the Commission’s 2007 report).

20 Id. at 573. 

21 See Press Release, U.S. Sentencing Comm’n, U.S. Sentencing Commission Votes

Unanimously to Apply Amendment Retroactively for Crack Cocaine Offenses (Dec. 11, 2007),

available at www.ussc.gov/PRESS/rel121107.htm.

22 Id.

5

November 1, 2007.18 The Commission believed that the amendment is only a

“‘partial remedy’”19 however, since the Guidelines still advance a “crack/powder

ratio that varies (at different offense levels) between 25 to 1 and 80 to 1.”20 The

Sentencing Commission then voted to make the amendment retroactive in an

attempt to remedy some of the past injustice the 100:1 ratio had wrought.21 The

amendment became retroactive on March 3, 2008.22

II.

In 1994, Robinson pleaded guilty to possession of crack cocaine with the

intentto distribute. Robinson was responsible for possessing approximately 206

grams of cocaine base. After factoring in his criminal history, his Guideline

range was 168 to 210 months. He was sentenced to 180 months in prison—i.e.,

15 years. Had he been convicted of possessing a similar amount of powder

cocaine, his sentence would have been between 4 and 5 years.

In March 2008, Robinson soughtto take advantage ofthe retroactive crack

amendment. He filed on his own behalf a motion (which was really a

questionnaire given to him by the local federal public defender office) pursuant

to 18 U.S.C. § 3582(c)(2). That subsection provides district courts with the

discretion to apply a retroactive amendment to a particular case, after the court

considers the sentencing factors in 18 U.S.C. § 3553(a), “if such a reduction is
No. 08-10424

23 18 U.S.C. § 3582(c)(2) (“[I]n the case of a defendant who has been sentenced to a term

of imprisonment based on a sentencing range that has subsequently been lowered by the

Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the

Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of

imprisonment, after considering the factors set forth in section 3553(a) to the extent that they

are applicable, if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.”).

6

consistent with applicable policy statements issued by the Sentencing

Commission.”23

In support of his § 3582(c)(2) motion, Robinson attached a report compiled

by the Bureau of Prisons that detailed his conduct in prison. The report shows

that over the course of Robinson’s 13 years in prison, he was generally well

behaved. For example, the report includes a note from officials from the current

prison housing Robinson that states that “he has maintained clear conduct,

maintains positive work ethic, and keeps a good rapport with staff.” The report

also notes that Robinson currently works as a baker and is “appreciated greatly

by the inmate population.” The report further lists the numerous classes

Robinson has completed. At the same time, in his 13 years in prison he has

received three disciplinary infractions: one in 2000 for giving another inmate

money so that he could use that inmate’s phone time; one in 2001 for passing a

note with his mailing address to a nurse at a public hospital; and one in 2004 for

being disrespectfulto a prison-staff member. The report also noted that in 1996,

two years after he started serving his sentence, he was convicted of perjury. (No

details on the perjury conviction have been provided.) Robinson was treated as

requesting an attorney when he attached to his motion a letter from the office

of the federal public defenders stating that it did not represent him. 

The Government responded to Robinson’s motion a month later with a 25-

page sentencing memorandum making a series of arguments. With respect to

the motion, the Government contended that Robinson was not entitled to an

attorney—nor needed one—because the issues the case presented were
No. 08-10424

24 543 U.S. 220, 125 S. Ct. 738 (2005) (rendering the Guidelines advisory to remedy

their constitutional shortcomings). 

25 United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007) (“Because Booker

abolished the mandatory application ofthe Sentencing Guidelines in all contexts, and because

reliance on its holding is not inconsistent with any applicable policy statement, we reverse the

district court and hold that Booker applies to § 3582(c)(2) proceedings.”); but see United States

v. Hudson, 242 Fed. App’x 16 (4th Cir. 2007), cert. denied 128 S. Ct. 1282 (2008) (concluding,

in an unpublished one-paragraph opinion, that the district court did not abuse its discretion

nor commit reversible error by concluding that Booker does not apply to § 3582(c)(2)

proceedings). 

7

“straightforward.” The Government also contended that the district court need

not hold a hearing. It further noted that Robinson had previously been

sentenced under a Guideline range of 168 to 210 months (receiving a 180-month

sentence) and that his range would become 140 to 175 months if the court

applied the retroactive crack amendment. The Government argued that if the

district court decided to grant the motion, Robinson should be given a new

sentence of 175 months, the sentence at the top of the new Guideline range. To

support its suggested sentence, the Government argued, among other things,

that releasing Robinson earlier was notjustified given his criminal history. The

Government pointed outthat Robinson had been convicted of a handful of crimes

in the past; that Robinson had been arrested in other instances; and that he had

received three disciplinary infractions while in prison. Finally, the Government

argued that United States v. Booker24 did not apply to a § 3582(c)(2) proceeding,

meaning that the Guidelines would be mandatory and the district court could

therefore not sentence Robinson below the bottom end of the new Guideline

range—i.e., 140 months. The Government admitted that this court had not yet

resolved the issue and that the only circuit court to do so in a published opinion,

the Ninth Circuit, had held that Booker renders the Guidelines advisory in a

§ 3582(c)(2) proceeding.25

The district court immediately issued a one-page order giving Robinson a

new sentence of 175 months without providing him an attorney. The court did
No. 08-10424

26 See Johnson v. Quaterman, 479 F.3d 358, 359 (5th Cir. 2007) (“Briefs by pro se

litigants are afforded liberal construction . . . .”). 

8

not explain why it was not providing Robinson an attorney, what effect (if any)

Booker might have on the sentencing process, or why it selected a 175-month

sentence. 

Two weeks later Robinson filed a motion for re-consideration. He provided

context for his three disciplinary infractions by attaching the reports generated

from those incidents. He also claimed the Government had made two factual

misstatements regarding his prior arrest history. 

Three days later the court denied Robinson’s motion for re-consideration

in a one-sentence order. 

Robinson promptly filed a notice of appeal. He has since filed a motion in

this court requesting that we appoint him an attorney. The Government has not

responded. 

III.

The sole issue before us now is whether to grant Robinson’s request for an

attorney to represent him in this court. Since Robinson filed the motion on his

own behalf without the help of an attorney, we liberally construe his request.26

In doing so, we read Robinson’s motion to contend that he should be appointed

an attorney as a matter of right and as a matter of grace. We address each

contention in turn. 

A.

There are three potential sources that could establish Robinson’s right to

an attorney—two constitutional sources and one statutory. 

The first potential source of a right to counsel can be found in the Fifth

Amendment’s Due Process Clause, which the Supreme Court has interpreted to

require the appointment of counsel for indigent defendants whenever
No. 08-10424

27 Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1763 (1973).

28 Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976); see also Lassiter

v. Dep’t of Soc. Servs. of Durham County, 452 U.S. 18, 25–33, 101 S. Ct. 2153, 2158–63 (1981)

(discussing applying the Mathews balancing test to a situation in which the question was

whether due process required the appointment of an attorney). 

29 Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257 (1967). 

30 Coleman v. Thompson, 501 U.S. 722, 755–57, 111 S. Ct. 2546, 2567–68 (1991);

Pennsylvania v. Finley, 481 U.S. 551, 555–58, 107 S. Ct. 1990, 1993–95 (1987). 

9

“fundamental fairness” demands it.27 Furthermore, due process requires a

pragmatic balancing of three distinct interests to determine whether more

process (such as providing a defendant an attorney) is constitutionally

mandated:

First, the private interest that will be affected by the official action;

second,the risk of an erroneous deprivation of such interestthrough

the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

interest, including the function involved and the fiscal and

administrative burdens thatthe additional or substitute procedural

requirement would entail.28

The second potential source of a right to counsel for indigent defendants

can be found in the Sixth Amendment’s guarantee of the assistance of counsel.

While the Supreme Court has held that “[c]ounsel for an indigent is required at

every stage of a criminal proceeding where substantial rights of a criminal

accused may be affected,”29 it has also stated thatthe Sixth Amendment does not

mandate counsel once the defendant’s direct appeal comes to an end.30

The third and final potential source of a right to counsel for indigent

defendants can be found in 18 U.S.C. § 3006A. That provision requires, among

other things, appointment of counsel for direct appeals and any “ancillary

matters” to the direct appeal.

In the 1995 opinion in United States v. Whitebird this Court held that an

indigent defendant in a § 3582(c)(2) proceeding did not have a right to an
No. 08-10424

31 55 F.3d 1007 (5th Cir. 1995); but see United States v. Alvarez, 210 F.3d 309, 310 (5th

Cir. 2000) (agreeing with two other circuitsthat “a § 3582(c)(2) motion is not a civil postconviction

action but a step in a criminal case”) (internal citation and quotation marks omitted)). 

32 Whitebird, 55 F.3d at 1011 n.3. 

33 Id. at 1011.

34 Id.

10

attorney under the Fifth Amendment, the Sixth Amendment, or 18 U.S.C.

§ 3006A(c).31 In Whitebird we summarily dismissed the Fifth Amendment claim

in a footnote by stating that “[t]his case does not present any due process

concerns,” and we likewise had no problem rejecting the Sixth Amendment

argument.32 Finally, we determined that the defendant had no statutory right

to an attorney under § 3006A(c), as we interpreted “ancillary matters” as not

including situations where a defendant files a § 3582(c)(2) motion.33 The court

determined that such motions are “too far removed [from the original criminal

proceeding] to be considered ‘ancillary.’”34

The sentencing procedure Robinson is subject to under his § 3582(c)(2)

motion is different than the sentencing procedure for § 3582(c)(2) motions when

Whitebird was decided. The sentencing procedure for § 3582(c) motions is

governed by USSG § 1B1.10(b), which was amended in 2008. Therefore, the

issues of concern for Robinson’s § 3582(c)(2) motion are distinguishable from the

facts in Whitebird. While previous courts had to determine what sentence they

would have given the defendant in light of the facts as they existed at the time

of the original sentencing, the new process requires district courts when

answering this question to consider, in every case, “the nature and seriousness

of the danger to any person or the community that may be posed by a reduction

in the defendant’s term of imprisonment” and allows district courts to consider

“post-sentencing conduct of the defendant that occurred after imposition of the
No. 08-10424

35 USSG § 1B1.10(b), n. 1(B) (Mar. 2008 ed.). 

36 See Judicial Council ofthe Fifth Circuit, Plan for Representation on Appeal Under the

Criminal Justice Act, § 3(B). 

11

original term of imprisonment.”35 The question, then, of whether a § 3582(c)(2)

motion triggers either a statutory or constitutional right to an attorney—in

either this court or the district court—is a different question now than it was

before the amendments to USSG § 1B1.10(b). 

We choose not to decide this issue now, however, since we have no briefing

from either the defendant or the Government. Moreover, we have no out-ofcircuit guidance since no circuit court has yet addressed the issue of whether a

defendant is now entitled to an attorney in a § 3582(c)(2) proceeding given the

new complexities USSG § 1B1.10 has injected into the process. 

B.

Assuming for the sake of argumentthatthis § 3582(c)(2) proceeding is not

ancillary to Robinson’s original criminal case—but rather is collateral—we have

discretion to appoint Robinson an attorney “in the interest of justice.”36 We

believe it is in the interest of justice to appoint Robinson counsel. 

Robinson’s appeal could raise a number of issues, and we would be more

likely to reach the correct resolution of those issues (and therefore serve the

interest of justice) if we had attorneys on both sides arguing their respective

positions. Those issues may include whether Robinson was entitled to an

attorney as a matter of right in the district court, whether Booker applies to

§ 3582(c)(2) proceedings (as the Ninth Circuit has held), rendering the process

set out in USSG § 1B1.10(b) advisory and granting the district court more

discretion in crafting a new sentence, whether the district court erred by not

holding an evidentiary hearing once he contested the factual basis of some ofthe

Government’s contentions, and whether the district court abused its discretion

in not giving him a larger sentence reduction. 
No. 08-10424

12

Robinson’s motion is granted and counsel shall be appointed under the

circuit procedure.

MOTION GRANTED.