DEFENDER SERVICES OFFICE
TRAINING DIVISION





CRACK COCAINE SENTENCING >
RETROACTIVE APPLICATION OF THE 2007 CRACK COCAINE GUIDELINE AMENDMENTS

  • Guidance to CJA Panel Attorneys

  • Sample Motions, Briefs, Petitions and Orders 

  • Chart Comparing Amended Version of USSG §1B1.10 with Previous Version 
    by National Federal Defender Sentencing Resource Counsel
    This chart compares the November 1, 2007 amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief. For additional comparisons of the previous and amended versions of USSG §1B1.10 see Redline Version of §1B1.10, Old Version of §1B1.10 and Amended Version of §1B1.10.

  • Supreme Court Holds That Booker Does Not Apply to Resentencings Under 18 U.S.C. § 3582
    In Dillon v. United States (No. 09-6338), issued on June 17, 2010, the Court held that Booker does not apply to sentencing modifications under 18 U.S.C. § 3582(c)(2). Percy Dillon had moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction. In affirming the Third Circuit's judgment, the Supreme Court first determined that "Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Based on this determination, "we conclude that proceedings under that section do not implicate the interests identified in Booker." For further analysis of Dillon see this SCOTUSblog post. For briefs filed in the case see SCOTUSwiki. For orders cited within petitioner's reply brief see fact-finding orders and appointment of counsel orders.

  • Commission Clarifies Meaning of USSG §1B1.10(b)(2)(B): Clients Who Received Non-Guideline Sentence Under Booker Still Eligible for Crack Retroactivity Sentence Reduction
    The amended guideline retroactivity policy statement, USSG §1B1.10, states at §1B1.10(b)(2)(B) that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, a further reduction generally would not be appropriate.” This appears to suggest that clients are not entitled to relief under the amendment if they received a non-guideline sentence under Booker. However, Sentencing Resource Counsel, as well as many Federal Defenders, report that at the Crack Summits in Charlotte and St. Louis, and at the Defender conference in Seattle, the Commission explained that §1B1.10(b)(2)(B) applies only if the original sentencing judge did not consider the guidelines at all. This acknowledgment is good news because there should be no instances in which judges ignored the guidelines. A sentencing judge must consider the guidelines, even if she then rejects them as unsound policy, and to do otherwise is reversible error under Gall v. United States, 128 S.Ct. 586, 596 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564, 570 (2007); Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007); Booker, 543 U.S. 220, 245-46 (2005). For comments relevant to this issue made at the St. Louis Crack Summit, view the Transcript of Portions of the Crack Amendment Retroactivity Summit.

  • Crack Retroactivity: Questions, Answers, Caselaw, Argument Outlines (February 18, 2008)
    by Federal Public & Community Defenders
    This memorandum addresses a variety of procedural and substantive issues arising in crack retroactivity cases including: the right to counsel; the right to a hearing and for the defendant to be present; whether a court must order a new presentence report upon motion; whether a court may amend a sentence under § 3582(c)(2) where the original sentence was imposed pursuant to a binding plea agreement; application of §3582(c)(2) to defendants who originally received a non-guideline sentence; application of safety valve or the substantial assistance statute in §3582(c)(2) proceedings; application of §3582(c)(2) relief to career offenders; relief where the defendant was incarcerated beyond the expiration of his sentence under the amended guideline range; and whether a court may impose a sentence below the minimum of the amended guideline range. For a more recent update on several issues raised in this article, see Crack Retroactivity Caselaw (May 11, 2009).

    For prior articles raising similar issues, see Sentence Reductions Under the Retroactive Crack Amendment , Selected Retroactivity Caselaw, Retroactive Crack Amendment: Practice Tips and Other Lessons Learned in Charlotte and Crack Summit II: Practice Tips and Lessons Learned in St. Louis.

  • Appointment of Counsel in Crack Retroactivity Cases (June 25, 2008)
    by the Training Branch of the Office of Defender Services
    This memo to the participants of the National Sentencing Policy Institute presents ten reasons why counsel should be appointed to handle § 3582(c)(2) motions. For a prior memorandum addressing this issue, see Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment Makes Sense and Is Constitutionally Required (by National Federal Defender Sentencing Resource Counsel) and Effective, Efficient, and Fair Implementation of the Retroactive Amendment.

  • BOP Communications Affecting Inmates Eligible for Sentence Reductions Under the Amended Crack Cocaine Guidelines 

  • Letter from Defenders to the United States Sentencing Commission (November 21, 2007)
    This letter outlines the Defender community’s opposition to the Commission's decision to amend USSG §1B1.10 (concerning retroactive application of amendments). Practitioners may find this letter useful in arguing, for example, that courts are not bound by the limitations set forth in the amendments to USSG §1B1.10.

  • Supplemental Statement of A.J. Kramer for the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity
    A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee
    This supplemental testimony responds to several DOJ assertions about retroactive application of the crack cocaine amendments, and corrects DOJ inaccuracies concerning alleged “dangerousness” of defendants convicted of crack cocaine offenses. It includes statistics showing lack of violence and recidivism in crack cocaine cases, urges judicial discretion, and directly contradicts DOJ testimony. Practitioners can use this supplemental statement, as well as A.J. Kramer’s original testimony, and the testimony of Michael Nachmanoff before the House, when disputing prosecutorial allegations that crack cocaine offenses, and those who are convicted of them, are "dangerous."