“Cracking” the Code: Interpreting Sentence Reduction Requirements in Favor of Eligibility for Crack Cocaine Offenders Who Avoided a Mandatory Minimum for Their Substantial Assistance to Authorities

INTRODUCTIONDamon Joiner and Richard Roe both pled guilty to distributing crack cocaine in 2007 and 2008 respectively.1 Both were caught with over one hundred grams of the highly addictive drug, charged with similar offenses, and received comparable sentences.2 Both had prior felony drug convictions.3 As such, both were sentenced in accordance with the harsher crack cocaine-sentencing scheme in effect before passage of the Fair Sentencing Act of 2010 ("FSA").4 In light of the lower guideline sentencing ranges for crack cocaine offenses prompted by the FSA, Roe is eligible for a sentence reduction.5 Joiner, however, is not.6In 1984, Congress created the U.S. Sentencing Commission ("USSC") to prevent exactly this type of injustice between Joiner and Roe.7 Congress tasked the USSC with ensuring certainty and fairness in federal sentencing and avoiding unwarranted disparities for similarly situated defendants.8 Nearly forty years later, however, the respective cases of Joiner and Roe demonstrate that unfairness and arbitrariness still abound in the federal sentencing scheme for crack cocaine offenses.9This disparity stems from divergent interpretations of the eligibility requirements for resentencing under the U.S. Sentencing Guidelines ("USSG").10 When the USSC lowers a guideline range through an amendment to the USSG and makes the amendment retroactive, eligible defendants sentenced under the previous scheme may seek a sentence reduction.11 For eligibility, the defendant's sentence must have been "based on" a guideline range subsequently lowered by the USSC, and the amendment to the USSG must have the effect of lowering the defendant's "applicable guideline range" at original sentencing.12The circuit courts disagree as to whether a defendant who avoided a mandatory minimum due to a departure for his or her substantial assistance to authorities meets these requirements.13 The issue centers on the meaning of the "based on" and "applicable guideline range" language.14 The Sixth Circuit has held that a defendant's sentence in these situations is not "based on" the subsequently lowered guideline range, because the sentencing judge departed from the mandatory minimum and not the guideline range to account for a defendant's substantial assistance to authorities.15 Conversely, the D.C. Circuit has held that a defendant's sentence is "based on" the guidelines range, because substantial assistance departures "waive" the mandatory minimum and allow the sentencing judge to consider the guideline range in imposing a sentence.16 Similarly, as to the second requirement, the Sixth Circuit has held that a USSG amendment does not have the effect of lowering the defendant's "applicable guideline range" because the mandatory minimum becomes the "applicable guideline range."17 The D.C. Circuit, however, has held a defendant's "applicable guideline range" remains the guideline range regardless of the mandatory minimum, which the amendment does have the effect of lowering.18Divergent interpretations of these requirements determine whether prisoners who provided substantial assistance to authorities may seek further sentence reductions.19 Because of these divergent approaches, Roe was eligible for a sentence reduction, but Joiner was not.20 Conflicting interpretations have led to unwarranted disparities like those between Joiner and Roe, which Congress specifically created the USSC to prevent.21This Note argues that courts should interpret the eligibility requirements for sentence reductions in favor of eligibility for crack cocaine offenders who avoided a mandatory minimum for their substantial assistance to authorities.22 This interpretation best comports with the text of the USSG, the goals behind the FSA, and the purpose of the USSC.23 Part I provides an overview of the USSG, describes the changing sentencing schemes for crack cocaine offenses, and outlines the eligibility requirements for sentence reductions. …