Federal Cocaine Sentencing Disparity: Sentencing Guidelines, Jurisprudence, and Legislation
Released: 2010-08-05T00:00:00

Background

In its 2005 opinion United States v. Booker , the U.S. Supreme Court declared that the once-binding federal sentencing guidelines (the Guidelines) set by the United States Sentencing Commission are now only advisory, in order to be compatible with the Sixth Amendment to the Constitution. Until 2007, the Guidelines reflected a statutory scheme that made crack cocaine defendants subject to the same sentence as those defendants trafficking in 100 times more powder cocaine; thus, the sentences for crack cocaine offenses were three to over six times longer than those for offenses involving equivalent amounts of powder cocaine. In the immediate aftermath of Booker , federal courts disagreed about whether the 100:1 ratio produces disparities that justify a sentence lower than that recommended by the Guidelines. The Supreme Court resolved that issue in its 2007 opinion Kimbrough v. United States , by holding that a federal court may impose a sentence below that called for under the Guidelines' then-existing 100:1 ratio, based on its conclusion that the ratio is greater than necessary or may foster unwarranted disparity.

The pre- Booker era for federal sentencing began with the Sentencing Reform Act of 1984, which established a sentencing system under the United States Sentencing Commission's federal sentencing guidelines. The previous system tailored sentences to the individual defendants. Judges were given broad ranges within which they could, at their discretion, sentence a defendant. The sentence was supposed to be based on the defendant's character as much as his conduct. Thereafter, the discretion given to the judge was passed on to the Parole Commission to determine how much of the judge's sentence the defendant ultimately served. Under the Guidelines, the judge's role at sentencing was more uniform and unvaried. The judge could inquire into a number of factors, including the defendant's conduct and criminal history. The judge then weighed each factor according to the Sentencing Commission's mandate and calculated an offense level for the defendant. The judge had discretion to sentence the defendant but, with little ground for departure, only within the narrow sentencing range that the Guidelines provided for each offense level. The Sentencing Reform Act also abolished the Parole Commission's role.

Crack cocaine became prevalent in the mid-1980s and received widespread media attention following the death of the University of Maryland all-American basketball player, Len Bias, from the use of cocaine. Crack cocaine was portrayed as a violence-inducing, highly addictive plague of inner cities, and this notoriety led to the quick passage of a federal sentencing law concerning crack cocaine in 1986. This legislation created two mandatory sentencing ranges for drug offenses. The lower bracket spanned periods of imprisonment ranging from a mandatory minimum of 5 years to a maximum of 40 years; the higher bracket spanned periods ranging from a mandatory minimum of 10 years to a maximum of life. Congress prescribed the threshold quantities of both crack and powdered cocaine required to bring a particular offense within either bracket. Despite the chemical identity of crack and powder cocaine, Congress set widely disparate threshold quantities for the two drugs, requiring 100 times more powder cocaine than crack cocaine to trigger inclusion in a particular range. The rationale offered was that many considered crack much more addictive than powder cocaine, and they feared a wave of violent crimes spawned by drug users as well as the health threats to infants born to addicted mothers. The Sentencing Commission also incorporated this ratio into the drug guidelines, although it later concluded that the 100:1 powder to crack ratio produces sentences that are greater than necessary to satisfy the purposes of punishment because it exaggerates the relative harmfulness of crack cocaine; the majority of crack offenders have low drug quantities, short criminal histories, and no history of violence. The Sentencing Commission also concluded that a ratio providing for sentences that are greater than necessary creates an unwarranted disparity, inappropriate uniformity, racial disparity, and disrespect for the law.

Over the years, Congress has had second thoughts about the disparity in drug sentences. To achieve a more equitable balance, as part of the Violent Crime Control and Law Enforcement Act of 1994, Congress enacted a safety valve provision, which provided an avenue for lowering mandatory minimum sentences in a limited category of drug cases. During the same year, Congress directed the Sentencing Commission to study the crack-to-powder ratio and submit recommendations relative to whether the ratio should be retained or modified. The Sentencing Commission recommended revision of the 100:1 quantity ratio in 1995, finding the ratio to be unjustified by the small differences in the two forms of cocaine. Congress rejected the recommendation of the Sentencing Commission and did not change the law.

Two years later, the Sentencing Commission issued a follow-up report. In this report, the commission reiterated its position that the 100:1 ratio was excessive. It recommended that the 100:1 ratio be reduced to 5:1 by increasing the threshold quantities for offenses involving crack cocaine and decreasing the threshold quantities for offenses involving powder cocaine. Again, Congress took no action and did not amend the law.

In 2001, the Senate Judiciary Committee asked the Sentencing Commission to revisit its position regarding the 100:1 ratio, and in the subsequent year, the Sentencing Commission issued its third report. In this report, the commission again proposed narrowing the gap that separated crack cocaine offenses from powder cocaine because (1) the severe penalties for crack cocaine offenses seemed to fall mainly on low-level criminals and African Americans, (2) the dangers posed by crack could be satisfactorily addressed through sentencing enhancements that would apply neutrally to all drug offenses, and (3) recent data suggested that the penalties were disproportionate to the harms associated with the two drugs. Unlike the previous report, the Commission did not recommend a reduction in the powder cocaine threshold. The Commission did recommend elimination of the 5-year mandatory minimum for simple possession of crack cocaine. Congress considered the substance of the Commission's 2002 report but took no action.

Judges have long been critical of the automatic prison terms, commonly referred to as mandatory minimum sentences, which were enacted pursuant to the Anti-Drug Abuse Act of 1986 in part to stem the drug trade.

United States v. Booker

Prior to the Supreme Court's decision in United States v. Booker , the case law was generally cognizant of the seriousness in the sentencing disparities between crack and powder cocaine but regularly deferred to Congress's policy judgments. This undertaking led to a series of decisions that upheld the 100:1 ratio against a variety of challenges, which included the Equal Protection Clause and the rule of lenity. It was also decided that under the mandatory guidelines system that was popular before Booker , neither the Sentencing Commission's criticism of the 100:1 ratio nor its unacknowledged 1995 proposal to eliminate the differential provided a valid basis for leniency in the sentencing of crack cocaine offenders.

In Booker , the Supreme Court consolidated two lower court cases and considered them in tandem, United States v. Fanfan and United States v. Booker . Booker was arrested after officers found in his duffle bag 92.5 grams of crack cocaine. He later gave a written statement to the police in which he admitted selling an additional 566 grams of crack cocaine. A jury in the United States District Court for the Western District of Wisconsin found Booker guilty of two counts of possessing at least 50 grams of cocaine base with the intent to distribute it, in violation of 21 U.S.C. § 841(b)(1)(A)(iii). At sentencing, the judge found by a preponderance of the evidence that Booker had distributed 566 grams in addition to the 92.5 grams that the jury found; the judge also found that Booker had obstructed justice. In the absence of the judge's additional findings, Booker would have only faced a maximum sentence of 262 months under the United States Sentencing Guidelines. The judge, however sentenced Booker to 360 months, based on the Guidelines' treatment of the additional cocaine and the obstruction of justice. The United States Court of Appeals for the Seventh Circuit affirmed the conviction but overturned the sentence.

Narcotic agents arrested Fanfan when they discovered 1.25 kilograms of cocaine and 281.6 grams of cocaine base in his vehicle. A jury in the District of Maine found that he possessed "500 or more grams" of cocaine with the intent to distribute, in violation of 21 U.S.C. § 846. At sentencing, the court determined that Fanfan was the "ring leader of a significant drug conspiracy," which, combined with his criminal history, resulted in a sentence of 188 to 235 months under the Guidelines. However, four days before the June 28, 2004, sentencing hearing, the Supreme Court decided Blakely v. Washington , holding that as part of a state sentencing guideline system, a Washington state judge could not find an aggravating fact authorizing a higher sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan considered the effect that Blakely may have on the federal sentencing Guidelines and recalculated the Guidelines based only on the possession of 500 grams and imposed the 78 month maximum for that range.

The Supreme Court granted certiorari in Booker and Fanfan in an effort to give some guidance to lower courts that had begun a variety of applications of the Blakely decision to federal prisoners. For example, in Booker , the Seventh Circuit found that the federal sentencing guidelines violate the Sixth Amendment in some situations. The Fifth Circuit, on the other hand, concluded that Blakely did not apply to the Guidelines because to do so would create a separate "offense" for each possible sentence for a particular crime. The Second Circuit, without resolving the issue, certified questions to the Supreme Court regarding the application of Blakely to federal sentences pursuant to the Guidelines.

The Supreme Court issued a majority opinion in two parts. The first part, written by Justice Stevens for a 5-4 majority (Justices Scalia, Souter, Thomas, and Ginsburg) decided that the Guidelines violate the Sixth Amendment and are thus unconstitutional because they require a judge to increase a sentence above the maximum guideline range if the judge finds facts to justify an increase. They said a defendant's right to trial by jury is violated if a judge must impose a higher sentence than the sentence that the judge could have imposed based on the facts found by the jury. Pursuant to 18 U.S.C. § 3553(b), the Guidelines were mandatory and thus create a statutory maximum for the purpose of Apprendi v. New Jersey , 530 U.S. 466 (2000), which had condemned mandatory judicial fact-finding for purposes of imposing a sentence beyond the statutory maximum. The Court had applied Apprendi 's reasoning to a state sentencing guideline system in Blakely v. Washington , and the rationale applied with equal force to the federal guideline system in Booker . Under the then current administration of the Guidelines, judges, rather than juries, were required to find sentence determining facts, and thus the practice was unconstitutional.

The second part, written by Justice Breyer for a different 5-4 majority (Justices Rehnquist, O'Connor, Kennedy, and Ginsburg) remedies this defect by holding that the Guidelines are advisory, thereby making it necessary for the courts to consider the Guidelines along with other traditional factors when deciding on a sentence, and also finding that the appellant courts may review sentences for "reasonableness." Driven by the Court's first holding, it "excises" (through severance and excision of two provisions) 18 U.S.C. § 3553(b)(1) and § 3742(e) from the Sentencing Reform Act and declares the Guidelines are now "advisory." Pursuant to § 3553(a), district judges need only to "consider" the Guideline range as one of many factors, including the need for the sentence to provide just punishment for the offense (§ 3553(a)(2)(A), to afford adequate deterrence to criminal conduct (§ 3553(a)(2)(B), to protect the public from further crimes of the defendant (§ 3553(a)(2)(C)), and to avoid unwarranted sentencing disparities among similarly situated defendants (§ 3553(a) (6)). The Sentencing Reform Act, absent the mandate of § 3553(b)(1), authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public, even when these differ from the perceptions of the United States Sentencing Commission. The Sentencing Reform Act continues to provide for appeals from sentencing decisions (regardless of whether the trial judge sentences are within or outside of the Guideline range) based on an "unreasonableness" standard (18 U.S.C. §§ 3553(a) and 3742(e)(3)).

Booker and the Crack Defendant

After Booker , the federal courts wrestled with whether they may or must impose sentences below the Guidelines' ranges in crack cocaine cases in view of the United States Sentencing Commission's conclusions and recommendations, the facts and circumstances of the case, the history and characteristics of the defendant, and the command of 18 U.S.C. § 3553(a)(2)(6) to avoid unwarranted sentencing disparity. Typically, the federal courts follow a three-step sentencing procedure in which they determine "(1) the applicable advisory range under the Sentencing Guidelines; (2) whether, pursuant to the Sentencing Commission's policy statements, any departures from the advisory guideline range clearly apply; and (3) the appropriate sentence in light of the statutory factors to be considered in imposing a sentence."

An appellate court held that the federal courts are not compelled to lower a sentence recommended by the Guidelines based on the sentencing differential for crack cocaine versus powder cocaine. On the other hand, in more than a few cases, the application of Booker has led to lower sentences than those suggested by the 100:1 ratio ranges established in the Guidelines. In some cases, after considering the factors set forth in 18 U.S.C. § 3553(a), the courts found a different ratio, either 20:1 or 10:1, more compatible with the statutory command of 18 U.S.C. § 3553(a)(6) to weigh the need to avoid unwarranted disparities.

The appellate courts were not so inclined to ignore the 100:1 ratio reflected in the then-existing Guidelines. For instance, the First Circuit held that the district court could not discard the guideline range and construct a new sentencing range, but could take into account, on a case-by-case basis, "the nature of the contraband and/or the severity of a projected guideline sentence." The First Circuit described the disparity as a "problem that has tormented enlightened observers ever since Congress promulgated the 100:1 ratio" and "share[d] the district court's concern about the fairness of maintaining the across-the-board sentencing gap associated with the 100:1 crack-to-powder ratio." But to recapitulate, said the First Circuit, "we hold that the district court erred ... when it constructed a new sentencing range based on the categorical substitution of a 20:1 crack-to-powder ratio for the 100:1 embedded in the sentencing guidelines." A panel in the Fourth Circuit agreed:

[t]he principal question ... is whether a district court in the post- Booker world can vary from the advisory sentencing range under the guidelines by substituting its own crack cocaine/powder cocaine ratio for the 100:1 crack cocaine/powder cocaine ratio chosen by Congress. For the reasons stated below, we conclude a court cannot.... [The] sentencing court must identify the individual aspects of the defendant's case that fit within the factors listed in 18 U.S.C. § 3553(a) and in reliance on those findings, impose a non-Guideline sentence that is reasonable ... in arriving at a reasonable sentence, the court simply must not rely on a factor that would result in a sentencing disparity that totally is at odds with the will of Congress.

The Fourth Circuit decision formed the basis for its later unpublished opinion in Kimbrough v. United States .

Kimbrough v. United States

Norfolk, VA, police arrested Derrick Kimbrough after they came upon him in the midst of what appeared to be a curbside drug sale. At the time, they discovered more than $1,900 in cash, 56 grams of crack cocaine, and more than 60 grams of powder cocaine in his car. They also recovered a loaded hand gun for which Kimbrough was holding a full magazine clip. Kimbrough subsequently pleaded guilty to federal charges for trafficking in more than 50 grams of crack, trafficking in cocaine powder, conspiracy to traffic in crack, and possession of a firearm during and in furtherance of a drug trafficking offense. He faced mandatory minimum terms of imprisonment of 10 years on the crack trafficking charge and of 5 years on the gun charge. The applicable sentencing guidelines called for a sentence of imprisonment in the range of 168 to 210 months on the drug charges with an additional 60 months on the gun charge (to be served consecutive to the drug charges for a range of imprisonment of 228 to 270 months). Kimbrough's attorney apparently urged a departure from the Guideline's recommended sentence based on the Sentencing Commission's dissatisfaction with the 100:1 ratio, Kimbrough's military service, the absence of any prior felony conviction, his employment record, and the suggestion that federal involvement represented an instance of "sentence shopping" in what was otherwise a state case.

Under the facts before it, the district court considered the sentence recommended by the Guidelines "ridiculous." It sentenced Kimbrough to the statutory minimum of 180 months in prison (10 years on the drug charges and 5 years on the gun charge). It did so in part because of the sentencing disparity for crack and powder cocaine. However, the Fourth Circuit Court of Appeals vacated and remanded the sentence, consistent with its holding in United States v. Eura that "a sentence that is outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses." On June 11, 2007, the Supreme Court agreed to consider whether the district court abused its discretion when it determined that in Kimbrough's case the sentencing range recommended by the Guidelines would be greater than necessary to serve the penological purposes described in 18 U.S.C. § 3553(a)(2) and should not be controlling in light of the instruction in 18 U.S.C. § 3553(a)(6) to consider the need to avoid unwarranted disparity among similarly situated defendants.

On December 10, 2007, the Supreme Court reversed the Court of Appeals in a 7-2 ruling. Writing for the majority, Justice Ginsburg held that although a district judge must respectfully consider the Guidelines range as one factor (among many) in determining an appropriate sentence, the judge has discretion to depart from the Guidelines based on the disparity between the Guidelines' treatment of crack and powder cocaine offenses. As the Booker decision had made clear that the Sentencing Guidelines—which include the cocaine Guidelines—are to be advisory only, the Fourth Circuit Court of Appeals had erred in holding the crack/powder disparity "effectively mandatory," the Court explained. Furthermore, the Supreme Court concluded that the 180-month sentence imposed on Kimbrough is reasonable given the particular circumstance of Kimbrough's case and that the district judge did not abuse his discretion in finding that the crack/powder disparity is at odds with the objectives of sentencing set forth in 18 U.S.C. § 3553(a)(2).

Spears v. United States

In a case that had been remanded by the Supreme Court for further consideration in light of Kimbrough , the Eighth Circuit Court of Appeals held in United States v. Spears that district courts "may not categorically reject the [crack-to-powder] ratio set forth by the Guidelines," and that "[n]othing in Kimbrough suggests the district court may substitute its own ratio for the ratio set forth in the Guidelines." On January 21, 2009, the Supreme Court issued a per curiam opinion that summarily reversed the appellate court's decision on remand, finding that the judgment conflicted with Kimbrough . The Court stated that "with respect to the crack cocaine Guidelines, a categorical disagreement with and variance from the Guidelines is not suspect" and reiterated that Kimbrough stands for the proposition that district courts have the "authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case." The Supreme Court explained,

As a logical matter, of course, rejection of the 100:1 ratio, explicitly approved by Kimbrough , necessarily implies adoption of some other ratio to govern the mine-run case. A sentencing judge who is given the power to reject the disparity created by the crack-to-powder ratio must also possess the power to apply a different ratio which, in his judgment, corrects the disparity. Put simply, the ability to reduce a mine-run defendant's sentence necessarily permits adoption of a replacement ratio.

In releasing the opinion in Spears v. United States , the Supreme Court sought to clarify its holding in Kimbrough that had been misinterpreted by not only the Eighth Circuit Court of Appeals, but the First and Third Circuits as well. The Court speculated that if the Eighth Circuit's restrictive interpretation of Kimbrough was correct, one of two things would likely occur:

Either district courts would treat the Guidelines' policy embodied in the crack-to-powder ratio as mandatory, believing that they are not entitled to vary based on "categorical" policy disagreements with the Guidelines, or they would continue to vary, masking their categorical policy disagreements as "individualized determinations." The latter is institutionalized subterfuge. The former contradicts our holding in Kimbrough. Neither is an acceptable sentencing practice.

2007 Amendment of the Sentencing Guidelines

In May 2007, the United States Sentencing Commission submitted proposed amendments to the Guidelines (including those applicable in Kimbrough ) that essentially did away with the 100:1 ratio for purposes of the Guidelines (except at the point at which the statutory mandatory minimums are triggered). It also recommended that Congress raise the thresholds for the statutory mandatory minimums for trafficking in crack, thereby eliminating the statutory 100:1 ratio. In making the decision to amend the Guidelines, the Commission sought to "somewhat alleviate" the "urgent and compelling ... problems associated with the 100-to-1 drug quantity ratio." The Commission opined that the amendment was "only ... a partial remedy" and was "neither a permanent nor complete solution."

In July 2007, the Commission proposed that the changes relating to what had been the 100:1 ratio in the Guidelines be made retroactively applicable to previously sentenced crack cocaine offenders. On November 1, 2007, the amendments to the Guidelines including those relating to crack and the 100:1 ratio went into effect. On December 11, 2007, the Sentencing Commission unanimously voted to apply the crack amendment retroactively.

As noted earlier, the Controlled Substances Act makes trafficking in 5 to 50 grams of crack cocaine or 500 to 5,000 grams of cocaine powder punishable by imprisonment for not less than 5 years and not more than 40 years. It makes trafficking more than 50 grams of crack or more than 5,000 grams of cocaine powder punishable by imprisonment for not less than 10 years and not more than life. These sanctions, like most federal criminal penalties, are reflected in the Sentencing Guidelines. The Guidelines assign most federal crimes to an individual guideline which in turn assigns the offense an initial base sentencing level. Drug trafficking offenses, for example, have been assigned to section 2D1.1, which sets the base offense level according to the amount of crack or powder cocaine involved in a particular case. Levels are then added or subtracted on the basis of any aggravating or mitigating factors presented in a particular defendant's case. For example, a defendant's offense level may be decreased by two or four levels, if the offense involved a number of participants and the defendant's role in the offense was minor or minimal. A defendant's final offense level and his criminal history (criminal record) govern the sentence recommended by the Guidelines. The Guidelines assign sentencing ranges for each of the 43 possible final offense levels. Each of the 43 has a series of six escalating sentencing ranges to mirror the extent of the defendant's criminal history. For example, if a defendant has no prior criminal record and his final sentencing level is 26, the Guidelines recommend that the sentencing court impose a term of imprisonment somewhere between 63 and 78 months; at the other extreme, if a defendant has an extensive prior criminal record and his final sentencing level is the same 26, the Guidelines recommend a sentencing range of between 120 to 150 months.

The drug quantity table that is part of the drug sentencing guideline, U.S.S.G. § 2D1.1(c), assigns offenses to one of several steps with corresponding sentencing levels based on the kind and volume of the controlled substances involved in the offense. For example, an offense involving 150 kilograms or more of powder cocaine is assigned a step (1) offense level of 38, while an offense involving less than 25 grams is assigned a step (14) offense level of 12. Prior to the amendments effective on November 1, 2007, each of the steps reflected a 100:1 ratio between crack and powder cocaine; for instance, offenses involving either more than 150 kilograms of powder cocaine or more than 1.5 kilograms of crack cocaine were each assigned a step (1) offense level of 38. In order to reduce the prospect of a Guideline result beneath the statutory minimums, the pre-amendment Guidelines assigned the 5-year-minimum-triggering 5 grams (crack)/500 grams (powder) offenses to U.S.S.G. § 2D1.1(c), step (7), with an offense level of 26 which translated to a sentencing range of from 5 years and 3 months (63 months) to 6 years and 6 months (78 months). It made a similar assignment for the 10-year mandatory minimum offenses involving 50 grams of crack or 5,000 grams of powder cocaine: level 32 with a sentencing range for first offenders of from 10 years and 1 month (121 months) to 12 years and 7 months (151 months).

The Commission's amendments focused first on the assignment for crack offenses subject to a mandatory minimum. The Commission noted that its earlier assignment set the bottom of the two ranges higher than necessary to satisfy minimum sentencing requirements (5 years and 3 months in the case of 5 grams; 10 years and 1 month in the case of 50 grams). Its amendments reassign those offenses to offense levels where the mandatory minimum fell within the middle of the ranges, that is, to offense level 24 (51 to 63 months for first offenders) and offense level 30 (97 to 121 months for first offenders) for 5- and 50-gram crack offenses, respectively. They then provide a similar two-level reduction for crack offenses involving amounts above and beyond those that trigger the mandatory minimums. The amendments, however, make no such changes in the offense levels to which powder cocaine offenses are assigned. As a consequence, the 100:1 ratio has disappeared from the Guidelines (although the statutory 100:1 ratio in the quantities of powder cocaine and crack cocaine that trigger the mandatory minimum penalties still remains).

Retroactivity Decision

In July 2007, the Commission proposed that the amendment be made retroactively applicable to previously sentenced crack cocaine offenders. After receiving public comment on the issue of retroactivity and holding public hearings to consider the issue, the Commission voted 7-0 in favor of retroactivity on December 11, 2007. While the Commission found "that the statutory purposes of sentencing are best served by retroactive application of the amendment," it emphasized that not all previously sentenced crack cocaine offenders will automatically receive a reduction in sentence—rather, federal sentencing judges will have the final authority to make that determination based on the merits of each case, after considering a variety of factors, including whether public safety would be endangered by early release of the prisoner.

Case Law Applying the Retroactive Crack Cocaine Amendments

In general, a federal court "may not modify a term of imprisonment once it has been imposed." However, there are limited exceptions to this general rule, including the following: a federal prisoner may petition a court to modify his original term of imprisonment if he was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Such a modification is authorized "if such a reduction is consistent with" policy statements issued by the Sentencing Commission supporting the reduction for previously sentenced offenders—in other words, if the Commission makes its Guideline amendments retroactively applicable. The federal court is not required to approve a sentence reduction motion; rather, the statute provides that a court "may" reduce such imprisonment term. However, a court may not reduce a sentence below a statutory mandatory minimum.

A federal court considering a so-called "§ 3582(c)(2)" motion has discretion to reduce the imprisonment sentence after considering the following statutory factors, set forth in 18 U.S.C. § 3553(a):

the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with educational or vocational training, medical care, or other correctional treatment in the most effective manner; the sentencing range established by the Commission; any pertinent policy statement issued by the Commission regarding application of the guidelines; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.

The Sentencing Commission's policy statement governing reduction of terms of imprisonment based on amended Guidelines ranges is Sentencing Guidelines § 1B1.10. The policy statement explains that "proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant." The policy statement also provides that a "court shall not reduce the defendant's term of imprisonment ... to a term that is less than the minimum of the amended guideline range."

In the wake of the Sentencing Commission's crack cocaine amendment retroactivity decision, the federal courts began considering § 3582(c)(2) motions filed by crack offenders to obtain reductions in their sentences. In the month of March 2008, when the retroactivity decision became effective, more than 3,000 prisoners nationwide had their sentences reduced; 1,000 of these inmates were released immediately. As of May 2010, a nationwide total of 15,778 motions have been granted, with an average decrease of 26 months from the prisoners' original sentence (a 17% decrease), while 8,280 petitions have been denied.

Several issues have arisen during these cases, including whether prisoners who request sentence reductions are entitled to have court-appointed lawyers to represent them in court, whether crack offenders who were sentenced as career-offenders are eligible for sentence reductions, and whether courts may reduce a sentence below the bottom end of the amended Guideline range (a power that would be available to a court assuming that Booker applies to § 3582(c)(2) proceedings). Many of the § 3582(c)(2) motions have been filed by defendants pro se, although often with some assistance by the local federal public defender office. A panel from the Fifth Circuit Court of Appeals declined to decide whether a § 3582(c)(2) motion triggers a statutory or constitutional right to an attorney, but rather used its discretionary authority to appoint the prisoner an attorney "in the interest of justice." Other federal courts have rejected the argument that a prisoner has a constitutional right to assistance of counsel in pursuing a § 3582(c)(2) motion for a sentence reduction.

Another question facing the courts was whether defendants who were convicted of crack cocaine offenses but sentenced as career offenders could benefit from the amended crack cocaine sentencing guidelines. Courts of appeals that have considered the issue have ruled that they cannot. An opinion from the Eleventh Circuit Court of Appeals is typical of these decisions:

Where a retroactively applicable guideline amendment reduces a defendant's base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence. Here, although Amendment 706 [the crack cocaine amendment] would reduce the base offense levels applicable to the defendants, it would not affect their guideline ranges because they were sentenced as career offenders under [U.S. Sentencing Guidelines] § 4B1.1.

Dillon v. United States

Federal courts have also addressed whether Booker applies to § 3582(c)(2) proceedings (which would determine whether district courts have the authority to impose a sentence that is even lower than the minimum of the amended Sentencing Guideline range). Ten courts of appeals have held that while Booker applies to original sentencing proceedings, "in which a district court must make a host of guideline application decisions in arriving at a defendant's applicable guideline range and then ultimately impose a sentence after reviewing the § 3553(a) factors," Booker does not apply to sentence modification proceedings under § 3582(c)(2) because such proceedings are "much more narrow in scope." One federal appellate court offered the following reasoning to justify its decision not to apply Booker to § 3582(c)(2) proceedings:

Nowhere in Booker did the Supreme Court mention §3582(c)(2). Because §3582(c)(2) proceedings may only reduce a defendant's sentence and not increase it, the constitutional holding in Booker does not apply to §3582(c)(2). ... Additionally, the remedial holding in Booker invalidated only 18 U.S.C. §3553(b)(1), which made the Sentencing Guidelines mandatory for full sentencings, and §3742(e), which directed appellate courts to apply a de novo standard of review to departures from the Guidelines. Therefore, Booker applies to full sentencing hearings –whether in an initial sentencing or in a resentencing where the original sentence is vacated for error, but not to sentence modification proceedings under §3582(c)(2).

In disagreement with all of the other circuit courts of appeals, the Ninth Circuit Court of Appeals found that Booker renders the Guidelines advisory in a § 3582(c)(2) proceeding, and thus a district court may reduce a sentence below the amended guideline range.

To resolve this circuit split and offer a definitive answer to this question, the Supreme Court granted certiorari in Dillon v. United States , a Third Circuit Court of Appeals case that had held that Booker does not apply to the size of a sentence reduction that may be granted under § 3582(c)(2). The defendant in the case, Percy Dillon, was convicted in 1993 of several felony offenses involving cocaine and was sentenced to the bottom of the then-applicable Guidelines range, 322 months. At his sentencing, the district court judge commented that "I personally don't believe that you should be serving 322 months[, b]ut I feel I am bound by those Guidelines.... I don't say to you that these penalties are fair. I don't think they are fair. I think they are entirely too high for the crime you have committed."

After the Sentencing Commission's decision to make the amendments to the crack cocaine Guidelines retroactive in December 2007, Dillon filed a pro se motion for a sentence reduction pursuant to § 3582(c)(2). The district court reduced Dillon's sentence to 270 months (the term at the bottom of the revised Guidelines range), although Dillon desired an even greater reduction, below the bottom of the amended Guidelines range, in light of Booker and the institutional rehabilitation and educational and community-outreach achievements that he has accomplished while incarcerated. On appeal, the Third Circuit opined that "[i]f Booker did apply in proceedings pursuant to § 3582, Dillon would likely be an ideal candidate for a non-Guidelines sentence," but ultimately upheld the district court's conclusion that it lacked the authority to further reduce his sentence because the Sentencing Commission's applicable policy statement (Sentencing Guidelines § 1B1.10) is binding on the district court pursuant to 18 U.S.C. 3582(c)(2).

In his briefs submitted to the Supreme Court, Dillon argued that Booker extends to resentencings conducted under § 3582(c)(2) and criticized the Sentencing Commission's policy statement (Sentencing Guidelines § 1B1.10) that binds district courts to the Guidelines sentencing range during resentencings under § 3582(c)(2). The policy statement, he asserted, "attempts to resurrect the mandatory Guidelines system Booker invalidated." In its brief on the merits, the United States argued that Booker only applies "when a court engages in a plenary sentencing." A § 3582(c)(2) proceeding, however, "provides a one-way ratchet to lower a defendant's otherwise-final sentence" in a way that "does not implicate the Sixth Amendment rule applied in Booker " because the court may not increase a defendant's sentence based on judicially found facts. Furthermore, the United States warned the Supreme Court of the consequences of applying Booker to § 3582(c)(2) proceedings:

[E]very retroactive Guidelines amendment would carry the potential to reopen thousands of sentences of imprisonment under the statutory sentencing factors set out in Section 3553(a). Petitioner's proposed rule not only would undermine principles of finality that are essential to the operation of the criminal justice system, but also would inevitably affect the Sentencing Commission's calculus in deciding whether to make its Guidelines amendments retroactive in the first place. That result would diminish Section 3582(c)(2)'s value as a mechanism for the exercise of leniency.

On June 17, 2010, the Supreme Court issued its opinion in Dillon , in which it sided with the position of the United States. In a 7-1 decision authored by Justice Sonia Sotomayor, the Court ruled that Booker did not apply to § 3582(c)(2) proceedings. Justice Sotomayor observed that while Booker had invalidated two provisions of the Sentencing Reform Act (SRA) of 1984, the decision "left intact other provisions of the SRA including those giving the Commission authority to revise the Guidelines ... and to determine when and to what extent a revision will be retroactive." This authority vested by Congress in the Sentencing Commission reflects the "substantial role" that Congress envisioned for the Commission with respect to sentence-modification proceedings.

Furthermore, she noted that the statutory text of § 3582(c)(2) undercuts Dillon's characterization of the sentence-modification proceedings as "plenary resentencing proceedings"; rather, the section provides a limited opportunity for a court to "modify a term of imprisonment" by reducing an otherwise final sentence under certain narrow circumstances specified by the Commission. "A court's power under § 3582(c)(2) thus depends in the first instance on the Commission's decision not just to amend the Guidelines but to make the amendment retroactive." A court is also bound by the Commission's determination of the extent to which a prisoner's term of imprisonment may be reduced. Justice Sotomayor described § 3582(c)(2) as not a constitutionally required proceeding, but rather "a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines." She explained that § 3582(c)(2) does not implicate the Sixth Amendment right vindicated in Booker because any facts that may be found by a judge in a § 3582(c)(2) proceeding would not increase the range of punishment—rather, it would only affect the judge's exercise of discretion within a particular amended Guidelines range. Thus, Dillon's constitutional rights were not violated by the district court that considered a reduction only within the amended range.

In lone dissent, Justice Stevens argued that Booker should apply to § 3582(c)(2) proceedings. He accused the Court of being "unfaithful" to Booker in treating the Commission's policy statements "as a mandatory command rather than an advisory recommendation." He also regarded the Court's decision to allow "the Commission to exercise a barely constrained form of lawmaking authority" as "manifestly unjust" and "on dubious constitutional footing." While accepting that Booker explicitly severed only two specific statutory sections of the Sentencing Reform Act, Justice Stevens believed that a fair reading of Booker requires the elimination of all mandatory features of the Guidelines. He surmised that "the Court's decision today may reflect a concern that a contrary holding would discourage the Commission from issuing retroactive amendments to the Guidelines, owing to a fear of burdening the district courts"; however, he urged that such concern "should not influence our assessment of the legal question" before the Court. He opined that "Dillon's continued imprisonment is a truly sad example of what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme."

Legislation in the 111th Congress

Several bills have been introduced concerning cocaine sentencing; to date, the Congress has passed one into law: S. 1789 (Fair Sentencing Act of 2010). Introduced by Senator Richard Durbin, S. 1789 will, among other things, increase the threshold amount of crack cocaine necessary to trigger the mandatory minimum penalties to 28 grams (from 5 grams for the current 5-year sentence) and 280 grams (from 50 grams for the current 10-year sentence). This change will reduce the statutory 100:1 ratio to 18:1. The bill also eliminates the 5-year mandatory minimum for simple possession of crack cocaine. The bill goes beyond crack cocaine sentencing issues by increasing criminal fine amounts available for major drug traffickers and also directing the U.S. Sentencing Commission to amend the Sentencing Guidelines to ensure that the Guidelines provide an additional penalty increase of at least two offense levels if the defendant used violence, made a credible threat to use violence, or directed the use of violence during a drug trafficking offense. The Sentencing Commission is also required to study and submit to Congress within five years a report concerning the impact of the changes in federal sentencing law made by the Fair Sentencing Act of 2010. On March 17, 2010, the Senate passed S. 1789 by unanimous consent. On July 28, 2010, the House considered S. 1789 under suspension of the rules and passed it by voice vote. President Obama signed the bill into law on August 3, 2010 ( P.L. 111-220 ). The Congressional Budget Office has estimated that implementation of S. 1789 will generate $42 million in savings to the federal prison system over the 2011-2015 period.

Representative Roscoe Bartlett introduced H.R. 18 (Powder-Crack Cocaine Penalty Equalization Act of 2009), which would equalize the triggering quantity for the mandatory minimum sentences for cocaine offenses at the crack cocaine levels (5 grams of powder cocaine would result in a 5-year sentence and 50 grams a 10-year sentence). Currently, it takes 100 times those quantities to trigger the 5- and 10-year mandatory minimum sentences for powder cocaine.

Representative Sheila Jackson-Lee introduced H.R. 265 (Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009), which would eliminate the statutory 100:1 ratio in cocaine cases by raising the crack cocaine threshold to 500 grams and 5 kilograms for the 5- and 10-year mandatory minimums, respectively. It would call upon the Sentencing Commission to reexamine the weight given aggravating and mitigating factors in drug trafficking cases. It also would eliminate the 5-year mandatory minimum for simple possession of crack cocaine. In addition, the bill would increase fines for significant drug trafficking offenses, authorize funding for prison- and jail-based drug treatment programs, and authorize increased resources for the Departments of Justice, Treasury, and Homeland Security.

Representative Bobby Scott introduced H.R. 1459 (Fairness in Cocaine Sentencing Act of 2009), which would amend the Controlled Substances Act and the Controlled Substances Import and Export Act regarding cocaine penalties. The bill would treat 50 grams of crack the same as 50 grams of other forms of cocaine, 5 grams of crack the same as 5 grams of other forms of cocaine, and would eliminate all mandatory minimum penalties relating to cocaine offenses. The bill also would reestablish the possibility of probation, suspended sentence, or parole for cocaine offenders. Representative Scott also has introduced H.R. 3245 (Fairness in Cocaine Sentencing Act of 2009), which would make fewer changes to the drug laws; the bill would eliminate references to "cocaine base" from the Controlled Substances Act and the Controlled Substances Import and Export Act (meaning that these laws would treat all forms of cocaine the same for sentencing purposes) and would eliminate the mandatory minimum for simple possession of crack cocaine.

Representative Maxine Waters introduced H.R. 1466 (Major Drug Trafficking Prosecution Act of 2009), which would, among other things, eliminate all mandatory minimum sentences for drug trafficking and possession offenses, and permit courts to place drug offenders on probation or suspend their sentences. The bill also would require the Attorney General to provide written approval before the commencement of a federal prosecution for an offense involving less than 500 grams of powder or crack cocaine.

Representative Charles Rangel introduced H.R. 2178 (Crack-Cocaine Equitable Sentencing Act of 2009), which would amend the Controlled Substances Act and the Controlled Substances Import and Export Act to treat 50 grams of crack the same as 50 grams of other forms of cocaine; 5 grams of crack the same as 5 grams of other forms of cocaine, and eliminate the 5-year mandatory minimum for simple possession of crack cocaine.

Past Congresses have considered legislation relating to cocaine sentencing; some of these bills had called for a 1:1 drug quantity ratio between crack and powder cocaine, while other bills would have changed the statutory ratio to 20:1.

Appendix. Drug Quantity Table (Before and After Amendment)