Legal, Policy and Training Division
TRAINING BRANCH
- Applying
the Crack Amendments 101 (November 1, 2007)
by National Federal Defender Sentencing Resource Counsel
This memorandum describes the 2007 crack cocaine amendments, how they work in cases sentenced on or after November 1, 2007, and points out anomalies within them.
- New
Drug Quantity and Drug Equivalency Tables: Inequities Resulting from
Mathematical Anomalies
The following links provide an overview of the problems resulting from the amended drug quantity table in USSG §2D1.1 and the amended crack cocaine/marijuana conversion table in Application Note 10(D); efforts to address the problems with the Commission; and solutions practitioners can use in arguing for a fair sentence for their clients.
UPDATE: In an effort to correct the mathematical anomalies resulting from the new crack-to-marijuana equivalency table, on April 16, 2008 the Commission voted to amend the commentary to USSG § 2D1.1, and also voted to amend §1B1.10 to provide retroactive effect to the amended commentary. According to the Commission, “these amendments take effect May 1, 2008. Until that date, the court should apply §2D1.1 as set forth in the 2007 Guidelines Manual, and §1B1.10 as set forth in the Supplement to the 2007 Guidelines Manual effective March 3, 2008.” For the Commission’s synopsis of the changes and the new text of the affected guidelines, click here.
(1) A Simple Solution to the False Equivalencies Produced by the New Crack-to-Marijuana Table in Cases Involving Retroactive Application of the Crack Amendment (March 24, 2008)
by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
This article describes the mathematical problem created by the amended drug equivalency table and offers legal and mathematical solutions. It explains how the drug equivalency table violates the enabling statute, is inconsistent with the guideline itself, and is not empirically supported. It also outlines why courts have jurisdiction to find in your client’s favor on this issue when resentencing pursuant to the crack amendment. (Part III of the paper contains arguments that may be useful in other contexts when the government claims that relief is barred by USSG §1B1.10.) Lastly, it offers two alternative solutions you can present to courts to ensure that your client receives the intended benefit of the amended guideline. This article will be published in the April 2008 issue of The Champion .(2) Good Math to Fight the Bad Math: Avoiding Unwarranted Disparity by Applying the Commission’s Lowest Accepted Ratios to All Offense Levels (March 11, 2008)
by James Egan, Research and Writing Specialist, Northern District of New York, and Molly Roth, Assistant Federal Public Defender, Western District of Texas
This article presents the case that the lowest crack ratios incorporated in the November 1 amendments should be applied at all base offense levels. Currently, the lowest ratios only operate at base offense level 26 of USSG §2D1.1. While maintaining that a 1:1 ratio is the only truly equitable fix, it urges counsel to use the Commission’s current lowest ratios—25:1 powder to crack and 5,000:1 marijuana to crack—to assert an intermediate fix that is more equitable than the current crack guidelines. This article will be published in the April 2008 issue of The Champion.(3) Faulty Math in New Cocaine Base Equivalency Table (January 18, 2008)
by James Egan, Research and Writing Specialist, Northern District of New York
This article addresses one of at least two mathematical anomalies presented in the new crack guidelines: a failure to appropriately update the conversion table to account for the two-level reduction in crack cases. It compares the pre- and post-amendment crack cocaine/marijuana conversion table in USSG §2D1.1, analyzes the impact of the amendment at each base offense level, and suggests algebraic formulae that more justly determine a client’s offense level under the amended guidelines. (For more information on another anomaly, the widely-varying ratio between crack and powder cocaine, see the discussion beginning on page 2 of Applying the Crack Amendments 101.)(4) Timeline of Commission’s Awareness and Actions with Respect to the Bad Math Problem (March 18, 2008)
by National Federal Defender Sentencing Resource Counsel
This paper details critical events and communications showing the USSC’s awareness of the mathematical anomalies in the drug equivalency table since shortly after it opened its crack amendment to public comment in January 2007, and its assurances that it will correct the problem. Practitioners can use this information to persuade sentencing courts to grant relief for their clients in poly-drug cases.
(5) Memorandum Regarding New Amendments to the Crack Cocaine Guidelines (May 17, 2007)
by Jason Hawkins, Appellate Division Supervisor for the Federal Public Defender, Northern District of Texas
This memorandum describes the mathematical problem in the drug equivalency table using hypothetical examples and laymen’s terminology. It also details the author’s conversation with a USSC Principal Legal Training Advisor, who told him how the USSC derived the table’s ratios between marijuana and crack. The memorandum can aid practitioners in understanding the mathematical problem and provide support for in-court arguments that the resulting disparity is unwarranted and lacks empirical or rational basis.
(6) Defender Letters to the Commission Regarding the Mathematical Problems with the Amended Drug Equivalency Table (February 22, March 11, and March 17, 2008)
by Federal Public and Community Defenders
At least three courts have recognized the anomalies produced by the new conversion table, and all three imposed a sentence below the amended guidelines as a result. The federal defender community has advised the Commission of these district court decisions in a letter dated February 22, and a letter dated March 11. In addition, at the request of the Commission, the defenders outlined a solution to the anomalies in a letter dated March 17.
- Statement
of A.J. Kramer at 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 testimony urges Congress to make the following reforms: equalize the penalties for crack and powder cocaine at the current powder cocaine quantity levels; direct the USSC to review and, if appropriate, amend the guidelines applicable to all drug types, to account for aggravating and mitigating circumstances that may or may not be present in individual cases; repeal the mandatory minimum for simple possession of crack cocaine; repeal the mandatory minimum for all drug offenses; establish a pilot program for federal substance abuse courts; authorize the appropriation of additional funds for the defense of drug trafficking cases in the event Congress authorizes increased salaries and expenses for the prosecution of such cases. Click here for A.J. Kramer's Supplemental Statement, addressing DOJ's arguments against retroactive application of the crack cocaine amendments and refuting DOJ claims regarding the rates of violence and recidivism of crack cocaine offenders.
- Statement
of Michael S. Nachmanoff at the February 26, 2008 U.S. House of Representatives
Hearing - Cracked Justice: Addressing the Unfairness in Cocaine Sentencing
Michael S. Nachmanoff, Federal Defender, Eastern District of Virginia, on behalf of the Federal Public and Community Defenders, before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism and Homeland Security
This testimony provides additional support and statistics for many of the same arguments made in A.J. Kramer’s Testimony & Supplemental Testimony (described above on this page) before the Senate Subcommittee on Crime and Drugs of the Senate Judiciary Committee.
- 2007
USSC Report to Congress on Cocaine and Federal Sentencing Policy
In this report, the Commission urges reform of the crack cocaine sentencing laws. Facts and arguments contained in the report may be very useful to practitioners defending crack cocaine cases.
- Guidance
to CJA Panel Attorneys
- Sample
Motions, Briefs and Orders
- BOP
Communications Affecting Inmates Eligible for Sentence Reductions Under
the Amended Crack Cocaine Guidelines
- 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; the effect of §3582(c)(2) on defendants whose guideline range is unchanged because of the new drug equivalency table; 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.
- A
Simple Solution to the False Equivalencies Produced by the New Crack-to-Marijuana
Table in Cases Involving Retroactive Application of the Crack Amendment
(March 18, 2008)
by Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel
This article describes the mathematical problem created by the amended drug equivalency table and offers legal and mathematical solutions. It explains how the drug equivalency table violates the enabling statute, discusses how the table is empirically unsupported, and outlines why courts have jurisdiction to find in your client’s favor on this issue when resentencing pursuant to the crack amendment. Finally, it offers a mathematical solution you can present to courts to ensure that every crack quantity converts to a quantity of marijuana that will maintain the same relative position within the guideline range, rather than increase your client’s advisory sentencing range. This article will be published in the April 2008 issue of The Champion.
- Sentence
Reductions Under the Retroactive Crack Amendment (January 2, 2008)
by National Federal Defender Sentencing Resource Counsel
This memorandum provides an analysis of several issues that may arise in the retroactive application of the crack cocaine guideline amendments. For an updated analysis of similar issues, see Crack Retroactivity: Questions, Answers, Caselaw, Argument Outlines.
- Text
of Amended USSG §1B1.10 (Concerning Retroactive Application
of Amendments)
- Redlined
Version of Amended USSG §1B1.10
(indicating all changes between the amended version and the previous version of the guideline)
- Chart
Comparing Amended Version of USSG §1B1.10 with Previous Version
by National Federal Defender Sentencing Resource Counsel
This chart compares the amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief.
- Effective,
Efficient, and Fair Implementation of the Retroactive Amendment
(January 14, 2008)
Federal Defender Sentencing Guidelines Committee
This memorandum was prepared for distribution to participants at the Crack Amendment Retroactivity Summit held January 17-18 in Charlotte, N.C. It expresses the Defender community’s views with respect to (1) the right to counsel in crack retroactivity cases, and (2) the right for the defense bar to have equal access to the names of those who may benefit from retroactive application of the crack guidelines.
- 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
This memorandum argues, contrary to positions taken by the Department of Justice and the Sentencing Commission, that defendants have a right to counsel in crack retroactivity cases under the Sixth Amendment and Due Process Clause.
- Selected
Retroactivity Caselaw
by National Federal Defender Sentencing Resource Counsel
This memorandum was prepared for distribution to participants at the Crack Amendment Retroactivity Summit held January 24-25 in St. Louis, MO. It addresses many issues that may arise in crack retroactivity cases, and provides caselaw and other support for a variety of arguments defense counsel may raise in handling such cases.
- 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.”
- Memo
Regarding DOJ's Proposed Legislation to Repeal Crack Retroactivity
(February 8, 2008)
by the Defender Sentencing Guidelines Committee
The Attorney General has publicly declared the Department of Justice's intention to propose legislation that would repeal the retroactivity decisions of Congress and the Sentencing Commission. This memo lists reasons why Congress is unlikely to pass such legislation.
- 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.
- Families
Against Mandatory Minimums
Check FAMM's web site for updated information on legislative developments regarding punishment for cocaine related offenses.
- FJC
Crack Cocaine Retroactivity Guideline Information Exchange
The Federal Judicial Center hosts this intranet web page to provide a forum for sharing information and ideas on policy and practice with regard to crack cocaine sentencing guideline retroactivity. Those with access to the site include all federal court judges and employees, federal defenders, personnel from the Administrative Office of the U.S. Courts (such as Probation), the Sentencing Commission and the Federal Judicial Center.